Choking & Strangulation Charges in NSW

The section 37 ladder

Crimes Act 1900 (NSW), s 37: (1A) intentionally choking, suffocating or strangling another person without their consent — maximum 5 years; (1) choking, suffocating or strangling so as to render the other person unconscious, insensible or incapable of resistance, recklessly — maximum 10 years; (2) doing so with intent to enable the commission of another indictable offence — maximum 25 years.

Section 37 contains three distinct offences of increasing gravity:

• s 37(1A) — intentionally choking, suffocating or strangling another person without the other person's consent. No injury and no loss of consciousness is required. Maximum penalty: 5 years' imprisonment.
• s 37(1) — choking, suffocating or strangling another person so as to render them unconscious, insensible or incapable of resistance, being reckless as to that result. Maximum penalty: 10 years' imprisonment.
• s 37(2) — doing so with intent to enable the commission of another indictable offence. Maximum penalty: 25 years' imprisonment.

The 2018 introduction of s 37(1A) changed charging practice significantly: conduct that might once have been charged as common assault is now charged under a specific, more serious provision. Which rung of the ladder a person is charged on — and whether the evidence actually supports that rung — is often the first live issue in the case.

Why these charges are prosecuted so seriously

Research in Australia and internationally has identified non-fatal strangulation as a significant risk indicator for later serious harm in domestic violence relationships. That research is the reason the standalone offence exists, the reason police are trained to identify and charge it specifically, and the reason prosecutors approach these allegations with particular gravity — including on bail, where a s 37 charge in a domestic context is treated as a serious matter from the first mention.

Anyone facing one of these charges should understand that context: it explains the prosecutorial posture, and it means the matter will not be treated as a minor one at any stage. It is also why the defence work must be precise rather than dismissive — the charge is serious, and it is answered with evidence, not minimisation.

What the prosecution must prove

For the s 37(1A) offence — the most commonly charged — the prosecution must prove beyond reasonable doubt:

• That the accused choked, suffocated or strangled the complainant — an act involving pressure to the neck or obstruction of breathing;
• That the act was intentional — not accidental or incidental contact in a struggle; and
• That it was without the complainant's consent.

For s 37(1), the prosecution must additionally prove the complainant was rendered unconscious, insensible or incapable of resistance, and recklessness as to that result; for s 37(2), the intent to commit or enable another indictable offence.

The medical-evidence battleground

Non-fatal strangulation often leaves no visible injury. The medical literature is clear that absence of marks does not mean absence of pressure to the neck — and prosecutors will lead evidence to that effect. But the proof issues run both ways. Where there is no injury, no contemporaneous medical examination, no independent witness and no recording, the prosecution case can rest substantially on the reliability and consistency of the accounts given — tested against the physical evidence, the timeline, and what the forensic material can and cannot actually establish.

In practice these cases are won and lost on detail: the precise mechanism described, whether the described act could produce the described effect, what the photographs and medical notes record and when, and how the account given at the scene compares with the account given later. Expert evidence on both sides is common, and engaging with it properly requires preparation that starts early.

The consent element in s 37(1A)

Absence of consent is an element of the s 37(1A) offence — it is part of what the prosecution must prove, not a defence the accused must establish. Whether consent genuinely arises on the facts of a particular case is a sensitive and technical question: it depends on the evidence about what occurred and the context in which it occurred, and the law in this area is exacting. It is precisely the kind of issue to be assessed carefully with legal advice before any account is given to police, not raised loosely or for the first time in an interview.

The domestic violence procedural overlay

A s 37 charge in a domestic context arrives with the full DV procedural framework: a police-initiated AVO served with the charge, recorded evidence-in-chief from the complainant, and a prosecution conducted by the state — which ordinarily continues whether or not the complainant wishes to proceed. Bail is contested seriously, and conditions commonly affect where the accused can live and who they can contact from day one. These dynamics are covered in detail on our Domestic & Family Violence hub, our common assault (DV) page and our AVO pages.

How Lenz Legal approaches s 37 charges

These matters reward early, disciplined work: obtaining the medical records, photographs and recorded statements promptly; identifying which rung of the s 37 ladder the evidence actually supports; briefing expert review of the forensic material where it matters; and making a properly informed decision between a defended hearing or trial, negotiation as to charge, and a plea on an accurate factual basis. Dean Lenz has defended serious violence allegations for more than twenty years and appears in these matters personally.

If police have charged you or asked you to attend an interview about an allegation of choking or strangulation, get advice first. The interview decision is the most consequential early decision in the case.

Choking and strangulation charges — your questions answered