Non-fatal strangulation is a serious criminal offence in New South Wales. Under Section 37(1A) of the Crimes Act 1900 (NSW), it is an offence to intentionally choke, suffocate, or strangle another person without their consent. This law was introduced to address the dangers and seriousness of non-lethal strangulation, particularly in the context of domestic and family violence.

What Does Section 37(1A) Cover?

Section 37(1A) criminalises deliberate acts of choking, suffocating, or strangling when the victim has not given consent. Unlike more serious offences under the same section, this provision does not require the victim to be rendered unconscious or incapable of resistance.

Key Elements of Section 37(1A)

• Deliberate Conduct: The accused must have intentionally performed the act of choking, suffocating, or strangling.
• Lack of Consent: The victim must not have freely agreed to the act.
• No Requirement for Unconsciousness: Unlike other subsections, this offence does not require the victim to lose consciousness or become incapacitated.
• Maximum Penalty: A conviction under Section 37(1A) can result in up to five years’ imprisonment.

Related Offences Under Section 37

There are two related, more serious offences under Section 37 of the Crimes Act 1900:

Section 37(1)

This offence applies when choking, suffocating, or strangling is carried out with the intent to render the victim unconscious, insensible, or incapable of resistance, and the offender is reckless as to this outcome.

• Maximum Penalty: 10 years’ imprisonment.

Section 37(2)

This subsection deals with choking, suffocating, or strangling committed with the intent to facilitate or assist in the commission of another indictable offence (such as a sexual assault or robbery).

• Maximum Penalty: 25 years’ imprisonment.

Legal Considerations

Intent

The law requires that the offender acted intentionally—the act cannot be accidental or negligent.

Consent

The victim must not have consented to the act. Consent must be both voluntary and informed.

Harm and Outcome

The severity of harm—such as whether the victim was rendered unconscious—can escalate the offence and its penalty.

Recklessness

If the offender proceeds with the act knowing there is a risk of causing serious harm (e.g., unconsciousness), this can lead to more serious charges and penalties.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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