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Charged with a Choking Assault? What You Need to Know
Being charged with attempt to choke, suffocate or strangle is one of the most significant criminal charges under NSW criminal law. Section 37 of the Crimes Act 1900 (NSW) creates three escalating offences, with maximum penalties from 5 years up to 25 years imprisonment.
Police and prosecutors treat these charges with particular seriousness because non-fatal strangulation is recognised by NSW courts as a strong predictor of escalating domestic violence, coercive control, and future homicide risk affecting women, family members, and other vulnerable victims.
What many people do not realise is that the offense is broader than common understanding suggests. Under section 37(1A), even momentary pressure to a complainant’s neck without their consent — without rendering them unconscious and without causing visible injury — can be enough to support a charge.
That said, outcomes vary. Many section 37 charges are downgraded, defended on lack of intent or consent, or resolved with non-conviction outcomes for less aggravated matters. The decisions you make in the first 48 hours, particularly whether to give a police interview, can shape the entire case.
The Australian Legal Practice represents clients facing choking assault charges across Burwood, Sydney CBD, and Parramatta. Our lawyers are available 24/7, the first consultation is free, and we have strong experience defending section 37 matters and negotiating downgrades to common assault.
Call (02) 8084 9929 for a free consultation with a principal criminal defence lawyer in Burwood.
What Is a Choking Assault?
A section 37 offence under the Crimes Act 1900 (NSW) is the offence of intentionally choking, suffocating, or strangling another individual. The Act does not define the terms “choke”, “suffocate” or “strangle”, so the ordinary meaning of those words applies:
- Choke: severe difficulty in breathing because of a constricted or obstructed throat or lack of air
- Suffocate: to have or cause to have difficulty in breathing
- Strangle: to squeeze or constrict the neck
The leading authority Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65 confirms that “intentionally choking” means intentional pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head. The physical effect or unconsciousness of the victim is not always required.
Key features of section 37 offences:
- The offence applies whether or not the complainant suffered any visible injury
- For the basic offence under s 37(1A), the prosecution does not need to prove the complainant was rendered unconscious
- Consent is the central element. The offence requires the conduct to be done without the other party’s consent
- The offense is most commonly charged in domestic violence contexts involving abuse, coercive control, and elevated risk concerns
- An attempt to choke is treated as seriously as the completed act under the law
- NSW courts increasingly consider research from national domestic violence and health agencies regarding strangulation-related homicide patterns affecting women and survivors
The 2018 amendments that introduced section 37(1A) made these offences significantly easier to prove. Before that amendment, prosecutors had to show the offender intended to render the victim unconscious. Now, the simple act of intentional choking without consent is enough.
Choking Assault Under Australian Law
The offence is contained in section 37 of the Crimes Act 1900 (NSW). The section creates three separate offences with escalating maximum penalties.
Section | Conduct Required | Maximum Penalty |
s 37(1A) | Intentionally choke, suffocate or strangle another person without consent | 5 years imprisonment |
s 37(1) | Intentionally choke, suffocate or strangle so as to render unconscious, insensible or incapable of resistance, reckless as to that result | 10 years imprisonment |
s 37(2) | Choke, suffocate or strangle so as to render unconscious, insensible or incapable of resistance, with intent to commit another indictable offence | 25 years imprisonment |
The offences fall under Table 1 of Schedule 1 of the Criminal Procedure Act 1986 (NSW). The s 37(1A) offence is generally finalised in the Local Court unless the prosecution elects to have the matter heard on indictment in the District Court. The s 37(1) and s 37(2) offences are routinely committed to the District Court given their gravity and links to high-risk domestic violence offenses.
Where the offence is committed against a person in a domestic relationship, it is also classified as a domestic violence offence under section 11 of the Crimes (Domestic and Personal Violence) Act 2007, which triggers mandatory ADVO applications by police under section 27. The mandatory ADVO regime under section 39 also applies on conviction.
What Must the Prosecution Prove?
To secure a conviction, the prosecution must prove each element beyond reasonable doubt. If any element fails, the court must find you not guilty.
For the basic offence under section 37(1A), the prosecution must prove:
- You choked, suffocated or strangled the alleged victim
- You acted intentionally, meaning you made a deliberate decision to apply the relevant conduct
- The alleged victim did not consent to the conduct
For the more serious offence under section 37(1), the prosecution must additionally prove:
- The alleged complainant was rendered unconscious, insensible, or incapable of resistance as a result
- You were reckless as to the possibility of rendering the victim unconscious, insensible, or incapable of resistance
For the most serious offense under section 37(2), the prosecution must prove the elements of s 37(1) plus:
- You acted with the specific intent to enable yourself or another individual to commit a separate indictable offence (such as sexual assault or robbery)
The intent and consent elements are the most commonly challenged aspects of section 37 charges. Where evidence is limited to the complainant’s statement, where the interaction was incidental rather than directed at the neck, or where consent can be inferred from the surrounding circumstances, the prosecution proceedings can fail.
Penalties for Section 37 Offenses in NSW
Penalties for section 37 offenses vary widely based on the specific charge, the seriousness of the conduct, and personal circumstances.
Charge | Local Court Max | District Court Max |
Intentional choking without consent (s 37(1A)) | 2 years | 5 years |
Choking rendering unconscious (s 37(1)) | Indictable only | 10 years |
Choking with intent to commit indictable offence (s 37(2)) | Indictable only | 25 years |
Sentencing options available to the court:
- Section 10 dismissal (no conviction recorded) — only realistic for the lowest-level s 37(1A) matters
- Conditional Release Order (CRO) with or without conviction
- Fine (rarely used as standalone sentence for s 37 offences)
- Community Correction Order (CCO)
- Intensive Correction Order (ICO), served in the community with strict conditions
- Full-time imprisonment
Factors that influence the severity of the penalty:
- Whether the victim was rendered unconscious or incapable of resistance
- Whether visible marks were caused (bruising, petechiae, broken blood vessels)
- Whether the conduct occurred in a domestic violence context
- Whether the conduct was prolonged or a brief act
- The presence of children or other vulnerable witnesses
- Whether weapons or implements were used (such as a ligature)
- Your prior criminal record, particularly any prior domestic violence offences
- Early plea of guilty and genuine remorse
- Evidence of rehabilitation, including counselling, anger management, or addiction treatment
- Reports from forensic, nursing, or mental health practitioners assessing ongoing risk
For first-time offenders charged under s 37(1A) with limited conduct and no visible harm, non-conviction outcomes such as Section 10 dismissals or CROs without conviction are achievable in some matters, though courts approach these offences with particular care given the link to escalating violence and potential homicide. Section 37(1) and s 37(2) offences almost always result in custodial sentences on conviction.
Possible Defences Against a Choking Assault Charge
Several defences are available for section 37 charges. Each is assessed on the specific facts of the matter.
- Consent (s 37(1A) only): Consent is a complete defence to the basic choking offence. Where the conduct occurred in a consensual context (such as during intimate contact between adults), the offence is not made out. Consent does not apply to s 37(1) or s 37(2) offences
- Lack of intent: The conduct was accidental or incidental, not directed deliberately at the neck. Bumping, accidental contact during a struggle, or unintended pressure during another physical interaction may not satisfy the intentional choking element
- Self-defence (section 418 Crimes Act 1900): Where the conduct was a reasonable response to a threat to yourself or another person, self-defence applies. Once raised, the prosecution must disprove self-defence beyond reasonable doubt
- Duress: You were forced to act by threats of serious harm from another person
- Necessity: The conduct was necessary to avoid imminent and greater harm
- The conduct does not meet the legal definition of choking, suffocation or strangulation under DPP (NSW) v GS (2022). Pressure must be capable of affecting breathing or blood flow. Brief or non-targeted contact may not satisfy this requirement
- Mistaken identity: You were not the person who engaged in the alleged conduct, particularly relevant where multiple people were present
- Honest and reasonable mistake of fact: A genuine and reasonable belief in a state of facts that, if true, would justify the conduct (such as a genuine belief in consent)
- Insufficient evidence: Where the prosecution case depends entirely on the complainant’s statement, with no medical evidence, no photographic evidence of injury, and no independent witnesses, the case may not meet the criminal standard of proof
The viability of each defence depends on the available evidence, including medical records, photographs of any injury, body-worn video, witness statements, and the fact sheet. Some matters also involve expert forensic opinions, family violence reports, and assessments prepared by health or nursing professionals.
Your Options When Charged with a Choking Assault
When you are charged with a section 37 offense, you face strategic decisions that shape the outcome.
- Negotiate with the prosecution. Strong early submissions can lead to the charge being withdrawn, downgraded (for example, from s 37(1) to s 37(1A), or to common assault under section 61, which carries 2 years rather than 5 or 10), or to amendments to the agreed facts that significantly reduce the seriousness for sentencing
- Plead not guilty and defend the charge. Where consent is in genuine dispute, where intent is unclear, where self-defence applies, or where the prosecution evidence depends on a single complainant statement, contesting the charge at hearing is often the right approach. Local Court matters are heard before a Judge; District Court matters before a Judge and jury
- Plead guilty and seek the best sentencing outcome. Where guilt is clear or evidence is overwhelming, an early plea attracts a sentencing discount. Strong mitigation material, character references, evidence of rehabilitation (particularly counselling or treatment for any underlying issues), and a frank acknowledgement of the conduct can support a non-custodial outcome for less serious s 37(1A) matters
The right choice is a strategic decision that depends on the seriousness of the alleged conduct, the strength of the prosecution evidence, and your personal circumstances. Pleading guilty without advice is particularly risky for section 37 allegations given the severity of the maximum penalties and the complexity of the consent and intent elements.
Why Choose The Australian Legal Practice for Choking Assault Charges
- Principal-level representation. You deal directly with an experienced senior criminal lawyer Burwood, not a junior or a call centre
- 24/7 availability on (02) 8084 9929. Choking assault arrests typically follow domestic incidents and require immediate response
- Three Sydney offices: Burwood (next to Burwood Local Court), Sydney CBD (Chifley Tower), and Parramatta (next to Parramatta Local Court)
- Free initial consultation so you can assess your defence options before your first court date
- Fixed-fee arrangements available for standard s 37(1A) matters
- Strong record on consent and intent challenges, including cases where charges were withdrawn before hearing
- Trial advocacy experience in District Court for s 37(1) and s 37(2) matters
- Integrated advice on associated ADVOs and parallel domestic violence proceedings under the Crimes (Domestic and Personal Violence) Act 2007
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Frequently Asked Questions About Choking Assault Charges
Section 37(1A) is the basic offence of intentionally choking, suffocating or strangling another person without consent, with a 5-year maximum. Section 37(1) is the more serious offence requiring proof that the victim was rendered unconscious, insensible, or incapable of resistance, with a 10-year maximum. Section 37(1A) was introduced by the 2018 amendments specifically to make domestic violence strangulation easier to prosecute.
No. Under section 37(1A), the prosecution does not need to prove the victim was rendered unconscious. Even momentary intentional pressure to the neck without consent can support a charge. The unconsciousness element only applies to the more serious offences under section 37(1) and section 37(2).
Yes, but only for the basic offence under section 37(1A). Consent does not apply to section 37(1) or section 37(2). Where the alleged conduct occurred in a consensual context, consent is a complete defence. The prosecution bears the onus of disproving consent beyond reasonable doubt once it is raised.
It depends on the specific charge and circumstances. Section 37(1A) matters can resolve with non-conviction outcomes such as Section 10 dismissals or CROs without conviction for first-time offenders with strong mitigation, though courts approach these charges with particular care. Section 37(1) and s 37(2) offences almost always result in custodial sentences on conviction.
Prosecutors typically rely on the complainant’s statement, photographs of any injury (bruising, redness, petechiae or broken blood vessels in the eyes), medical records, body-worn video from attending police, recordings of triple-zero calls, witness statements from anyone present, and any admissions made by the accused. Where the evidence depends entirely on the complainant’s statement, the case can be vulnerable to challenge.
