The NSW Domestic Violence Offence of Non-Fatal Strangulation

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By Paul Gregoire and Ugur Nedim

Victim Support ACT revealed last month that there’s been a rise in reports of domestic and family violence in the capital territory during the COVID-19 pandemic, which had translated to a 130 percent increase in reported incidents in June, compared with the same period last year.

This has included an increase in reported domestic and family violence incidents involving non-fatal choking or strangulation, which numerous studies have shown is a significant indicator in terms of future homicide.

In late May, a 27-year-old man in NSW was charged over an alleged choking incident that involved a 5-year-old boy in a Rutherford home in the Hunter Region. The offender had been arguing with a 44-year-old woman, before turning upon the child.

During the incident, the man lifted the boy off the ground via his throat, dropped him onto a couch and then fled the residence. NSW police subsequently located the suspect a few hours later in a hotel room in Sydney’s CBD.

The man was arrested in the hotel in Haymarket at 9.45 pm on 16 May and was then hauled into Surry Hills Police Station. He was charged under the relatively recently enacted strangulation without consent law, which was drafted with domestic and family violence incidents in mind.

Non-lethal strangulation

The 27-year-old NSW man was charged with intentionally choking, suffocating or strangling another person without their consent, contrary to subsection 37(1A) of the Crimes Act 1900 (NSW)(the Act). The offence carries a maximum penalty of 5 years imprisonment.

The crime of intentional strangulation without consent was passed as part of a suite of law reforms contained in the Crimes Legislation Amendment Bill 2018 (NSW).

The new offence was drafted with a view to having a simpler strangulation offence that could be applied to the domestic setting.

At the time, section 37 of the Act contained two strangulation offences that were the result of 2014 amendments. These crimes replaced earlier choking laws which were related to committing a further indictable offence, which therefore, weren’t capturing domestic violence (DV) incidents.

Subsection 37(1) contains the offence of intentionally choking, suffocating or strangling another person to render them “unconscious, insensible or incapable of resistance”. This crime, which includes recklessly producing the outcome, carries a maximum prison sentence of 10 years.

While the second 2014 strangulation offence is contained in subsection 37(2) of the Act. It makes it a crime to choke, suffocate or strangle another in order to enable the offender or someone else to perpetrate another indictable offence. And it carries a maximum penalty of 25 years inside.

The findings of the death review

The NSW Domestic Violence Death Review Team 2015-2017 report states that the literature “demonstrates a link between strangulation and domestic homicide” and over a quarter of intimate partner homicides involve the abuser having strangled the victim during a prior attack.

Researchers further found that rather than being charged under the 2014 offences, domestic violence offenders that commit strangulation were being charged with common assault, under section 61 of the Act, which carries a maximum of 2 years imprisonment.

The 2014 amendments were brought in with a particular focus on capturing DV strangulation. Then attorney general Brad Hazzard explained at the time that 70 percent of domestic violence assaults were being charged as common assault.

However, the new laws he oversaw the enactment of didn’t change these outcomes.

The team of researchers pointed to a specific domestic violence-related non-fatal strangulation offence that had recently been enacted in Queensland as being promising. And they also emphasised that these attacks can lead to long-term injuries that may not be apparent at first.

The parliamentary findings

Building upon the Death Review Team’s report, a September 2018 NSW parliamentary research paper raised issues around DV strangulation crimes, including the fact that the 2014 offences make it necessary to prove the offender’s intent to cause a specific outcome, such as unconsciousness.

And when it came to prosecuting these crimes under common assault, the 2 year sentence wasn’t seen to reflect the seriousness of the crime, whereas the ability to prosecute as assault causing actual bodily harm – which carries a longer sentence – wasn’t practical due the nature of that offence.

The paper also considered NSW Bureau of Crime Statistics and Research (BOCSAR) data which set out that between June 2014 and March 2018 of the 831 people charged with the section 37(1) offence, 739 were domestic violence-related incidents, but only 247 resulted in a finding of guilt.

Initial improvement indicated

“Research also finds that women are almost eight times more likely to be killed by an intimate partner if that person has previously strangled them,” said NSW attorney general Mark Speakman, during his second reading speech on the Crimes Legislation Amendment Bill 2018.

The minister added that in domestic violence incidents where intention couldn’t be shown under the existing laws, the lesser offence of common assault was being turned to with the insufficient maximum penalty of 2 years imprisonment.

“This indicates that existing sentences are ill suited to providing an appropriate criminal justice response to, and red flag for, domestic violence strangulation,” the attorney general continued.

The new non-lethal strangulation offence was passed on 21 November 2018. And early statistics indicate that the new law has been effective.

Figures released last December show that in the first 12 months of the law being in force, 899 charges had been laid.

Women’s Safety NSW chief executive Hayley Foster told the Sydney Morning Herald in December that the results were promising, but hardly surprising, as domestic violence strangulation incidents have been a long-term issue. And she expected the number of charges would only rise.

“Strangulation is a serious act of violence that can cause serious psychological and physical harm without any sign on the body,” Speakman said in relation to the release of the new figures. And he added that the non-fatal offence had become a vital addition to the NSW police toolkit.

If you or someone you know is impacted by sexual, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit In an emergency, call 000.

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