Choking, Suffocation, and Strangulation (ACT)

Every state and territory of Australia as a standalone offence consisting of an assault involving the non-fatal choking, suffocation, or strangulation of another person. This offence is constituted differently in different jurisdictions. In the ACT, the offence is governed by section 28 of the Crimes Act 1900. This page outlines the offence of choking, suffocation, and strangulation in the ACT.

Acts endangering health

Section 28 of the Crimes Act 1900 deals with a number of different offences that involve acts that pose a danger to health. Under this provision, it is an offence to do any of the following:

• choke, suffocate, or strangle another person
• administer a poison or other substance with intent to injure, or cause pain or discomfort to another person
• cause an explosion or use an explosive device in a way that poses a danger to the health of another person
• send a trap or device in circumstances that pose a danger to the health, safety or well-being of another person
• interfere with a conveyance, public transport facility, or other public facility in circumstances that pose a danger to the health, safety, or well-being of another person.

This offence attracts a maximum penalty of five years imprisonment, or in the case of an aggravated offence, seven years imprisonment.

What is choking, suffocation, or strangulation?

The Act defines choking and strangulation as applying, to any extent, pressure to another person’s neck.

The Act defines suffocation as obstructing in any way access to any part of a person’s respiratory system, or to any part of the person’s accessory systems of respiration, or interfering to any extent with a person’s respiratory system or accessory systems of respiration, or impeding in any way a person’s respiration.

Family violence

Choking, suffocation, and strangulation is a type of assault that commonly occurs in a family violence context. Victims of this type of assault have been found to be seven times more likely to become the victim of a fatal domestic violence assault. For this reason, this type of offending is viewed as particularly serious as it is an indicator of the likelihood of future serious violence.

Consequences of choking, suffocation, and strangulation

A person who is subjected to this type of violence may lose consciousness, experience nausea, difficulty swallowing, difficulty speaking, blood clots, and strokes. The victim may die within a short period of time as a result of their blood or airflow being restricted. They may also die days or weeks later as a result of other complications.

The offence of choking, suffocation, or strangulation that now exists in the ACT was introduced in 2015. Prior to that time, the offence of choking, suffocation, or strangulation was limited to situations where the victim was rendered in sensible or lost consciousness. The amendment to the law was made because of the need to recognise the seriousness of any assault involving the application of pressure to the neck.

Test for the offence of choking, suffocation, or strangulation

The offence, as it is currently constituted, does not require the court to be satisfied that the victim’s breathing was stopped. It only requires evidence that pressure was applied to the victim’s neck.

Defences

A person who is charged with this offence may rely on a legal defence. For example, an accused person may argue that they committed the act in self-defence. This defence will succeed only if the court is satisfied that the accused was acting in response to a physical threat, that they believed their actions were necessary in self defence, and that their actions were proportionate to the level of threat they believed they were facing.

Other states

in some jurisdictions, the offence of choking, suffocation, or strangulation applies only in cases where the parties are in a family relationship. Other assaults of this kind would have to be prosecuted as some other category of offence — for example assault or grievous bodily harm.

In some states and territories, the offence requires that the victim did not give their consent to the conduct. In the ACT, lack of consent is not an element of the offence.

Jurisdiction

the offence is an indictable offence that can be finalised summarily. This means that it may be finalised in a lower court such as the Magistrates Court or the Children’s Court. It may also be committed to a higher court the finalisation.

In a lower court, the maximum penalty that can be imposed for a single offence is two years imprisonment. If you require legal advice or representation in any legal matter, please contact Go to Court Lawyers.