Strangulation Offences (NSW)

All Australian states and territories now have legislation that makes non-fatal strangulation a standalone offence. This means that when an assault that involves strangulation is committed, it can be charged as a strangulation offence rather than simply as an assault. Strangulation offences carry much higher maximum penalties than common assault because of the serious risks associated with this form of violence. This page deals with strangulation offences in New South Wales.

What is strangulation?

Strangulation occurs when breathing is restricted by something outside a person’s throat. Strangulation can lead to a person’s death in around a minute. It can also cause death weeks or even months after it occurs because of blood clots, stroke or brain damage. In many cases, after a person has been strangled, they have no visible injuries.

Family violence and strangulation

Strangulation most often occurs in the context of family violence. Victims of non-fatal strangulation assaults are seven times more likely to subsequently become the victims of fatal family violence assaults. For this reason, public pressure has been mounting for some time for strangulation assaults to be recognized as a discrete and particularly serious form of family violence which raises a red flag that further serious assaults are likely.

Choking, suffocation or strangulation

Offences involving choking, suffocation or strangulation are set out in section 37 of the Crimes Act 1900. Under this provision, there are three different offences, each with a different maximum penalty.

Simple offence

A simple offence of intentionally choking, suffocating or strangling another person without consent is punishable by a maximum penalty of five years imprisonment.

Where the victim is rendered incapable of resistance

An offence of intentionally choking, suffocating or strangling a person without consent so as to render them unconscious, insensible or incapable of resistance and is reckless as to rendering the person unconscious, insensible or incapable of resistance is punishable by a maximum penalty of 10 years imprisonment.

Where offence committed with intent to commit another offence

A person who commits an offence of intentionally choking, suffocating or strangling another person without consent so as to render them unconscious, insensible or incapable of resistance in order to enable themselves to commit, or assist another person, to commit another indictable offence is guilty of an offence publishable by a maximum penalty of 25 years imprisonment.

History of the offence of strangulation

The offence of strangulation has been part of the New South Wales Crimes Act since its inception in 1900. The definition of the offence was altered in 2014, creating a simple version of the offence. Prior to 2014, the offence was limited to situations where choking, suffocating or strangulation was used with intent to carry out another offence.

The offences were again reviewed in 2018 to ensure that the provisions were operating correctly. This was due to concern about the serious medical consequences of this type of violence as well as the high incidence of victims of strangulation subsequently becoming victims of fatal family violence assaults.

The parliamentary review in 2018 found that of all the finalised charges under section 37, 29.7% resulted in a finding of guilty. Of the total offenders found guilty of the offence, 50% were sentenced to imprisonment with the average sentence being 11 months.

Jurisdiction

A simple offence of choking, suffocation or strangulation is an indictable offence that is triable summarily. This means that the matter may be finalised in the Local Court if both parties agree. It may also be transferred to a higher court for finalisation.

An offence of choking, suffocation or strangulation where the victim is rendered incapable of resisting is also an  indictable offence that is triable summarily.

An offence of choking, suffocation or strangulation with intent to commit another crime is a strictly indictable offence that can only be finalised in a higher court.

Other jurisdictions

All Australian states and territories have now enacted legislation making non-fatal strangulation a standalone offence. In some states, such as Victoria, this offence only applies when the assault is committed in a family violence context. In New South Wales, these offences can be charged whenever this type of violence occurs, even where the parties are not in a family relationship.

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