Attempts To Choke/Suffocate

THE LAW

The law categorises the offence against the persons and is defined and punished under Section 37 which states:

(1) A person is guilty of an offence if the person:

(a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and

(b) is reckless as to render the other person unconscious, insensible or incapable of resistance.

Maximum penalty: imprisonment for 10 years.

(2) A person is guilty of an offence if the person:

(a) chokes suffocate or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and

(b) does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence.

(3) In this section:

“another indictable offence” means an indictable offence other than an offence against this section.

This matter is strictly indictable that is it can only be finalised in the District Court.

The nature and elements of the offence of Attempts to Choke were considered in R v MW [2007] NSWCCA 291. It was recognised that there are “varying degrees of criminality in an offence contrary to s 37.” McClellan CJ at CL added at [43]:

“It must be remembered that the offence itself is defined as an “attempt to choke.” When that attempt results in the victim becoming unconscious the offence is one of considerable gravity”.

Similarly, in R v HQ [2003] NSWCCA 336, it was held that choking the victim to the point where she lapsed into semi-consciousness constituted a serious form of the offence: at [42].

 

MAXIMUM/POSSIBLE PENALTIES

The maximum penalty for the charge of attempts to choke another person (Section 37 of the Crimes Act) is 25 years of imprisonment.

However, the above-mentioned penalty is reserved only for the worse offences and you might likely not face the same.

In NSW, a court can impose any of the following penalties for an Attempts to Choke charge of:

  • Full-time Imprisonment;
  • An Intensive Correction Order ICO (ICO);
  • A Community Correction Order (CCO);
  • A Conditional Release Order (CRO).

 

THE FACTS THAT MUST BE PROVEN

Since Attempts to Choke a person is a criminal offence and the burden of proof lies on the Prosecution. The prosecution must prove each of the following matters beyond reasonable doubt being that:

  • You, with the intention of enabling yourself or some other person to commit an indictable offence or assisting any person to commit an indictable offence;

(a) attempted to choke, strangle or suffocate any person;

          (b) By any means calculated to choke, suffocate or strangle;

(c) Attempted to render any person insensible, unconscious or incapable of resistance;

  • They will also need to prove that you were the person who committed the attempts to choke offence.
  • And negate any legal defences you have raised. 

 

DEFENCES

Some of the possible defences available for those charged with Attempts to Choke include:

  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”; Or
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of Self-Defence;
  • You did not commit the act.

 

CHOICES AT LAW OPTIONS

For using a carriage service to menace, harass or cause offence, Rep-Revive Criminal & Employment Lawyers® offers the following options:

1.     We initiate negotiation with prosecutors (police) (a term referred to as “plea negotiations”) and plead to withdrawal or downgrade of the charge or alternatively, seek amendments to the police fact sheets or documents.

2.     At the hearing/trial, Rep-Revive Criminal & Employment Lawyers® shall if you so instruct Plead Not Guilty and drive the argument based on prosecution’s inability to prove the elements of their accusation.

3.     Alternatively, Rep-Revive Criminal & Employment Lawyers® may plead guilty on your instructions however, the hearing shall revolve around the facts with an objective to obtain a moderate or minimum punishment.

4.     Lastly, Rep-Revive Criminal & Employment Lawyers® on your instructions enter a plea of guilt where you accept all the charges pressed by the police, but we present a case so solid on your behalf, with an objective to persuade and convince the Court to not record a criminal conviction against you.

For further information on your choices at law click on (CHOICES AT LAW tab on our website)

 

WHY REP-REVIVE CRIMINAL & EMPLOYMENT LAWYERS®

There are several reasons to engage Rep-Revive Criminal & Employment Lawyers®:

  •  We are always in your corner

At Rep-Revive Criminal & Employment Lawyers® we understand the gravity of a criminal charge on your reputation. Thus, we work with the utmost diligence and fervour to restore any dints to our client’s repute. We fight for your rights and liberty earnestly, and for the best results, irrespective of the intensity of the matter. All these factors have made us known in the industry as always being in our client’s corner. 

  •  We bring about excellent results

Rep-Revive Criminal & Employment Lawyers® is driven by positive outcomes and defend your case with skills which have been sharpened by years of experience. You will be dealing with lawyers who are proficient at their craft and will defend your case with rigour and an aim to have the matter withdrawn, downgraded, dismissed or the minimal penalty available at law imposed.

Rep-Revive Criminal & Employment Lawyers® are adept in all forms of advocacy and will present your case in the most skilful manner in Court. 

  • Your case will be in the hands of an experienced lawyer

Irrespective of your decision in deciding the course of the case, you will be supported and guided by Rep-Revive Criminal & Employment Lawyers® who have been in the provision of legal service for over 21 years. 

If you are caught up in this charge our team at Rep-Revive Criminal & Employment Lawyers® are best suited for representing your case.

Please contact our office on 0419 998 398 or 0492 857 721 or email info@rpr5.sydney for more information. The first consultation is free.

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