What Are the Penalties for Choking Another Person Without Consent?

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A British man who violently assaulted a woman after meeting her on the popular dating app, Tinder, has been sent to prison.

An English court heard that 32-year old Benjamin Flatters attended his female victim’s home on 23 June 2022, six weeks after they first began communicating on Tinder.

At the top of her stairs, Mr Flatters placed his hands around the woman’s throat before forcing her into a bedroom where he continued to attack her.

The assault lasted for around five minutes before the woman managed to get free, run down the stairs and outside the home, and ask a neighbour for help. It is reported that while the woman was with the neighbour, Mr Flatters said something about not wanting to return to prison.

The neighbour called police who attended the premises to find the victim with red marks around her neck.

Mr Flatters was later arrested and pleaded guilty to non-fatal strangulation (known in New South Wales as intentionally choking, suffocating or strangling), an offence which carries a maximum penalty of five years in prison.

He also pleaded guilty to threatening to set fire to a premises and criminal damage, known in NSW as intentionally or recklessly destroying or damaging property.

He was sentenced to two years and eight months in prison and is required to serve 12 months thereafter on ‘extended licence’, which is similar to parole in NSW.

He was also placed on a 10 year restraining order, which is the equivalent of an apprehended violence order or ‘AVO’ in our state.

Sending a signal to the community

Mr Flatters is reported to be one of the first people imprisoned under non-fatal strangulation laws introduced in the United Kingdom in June 2022.  

Their primary objectives of the regime are to protect victims of domestic violence and send a message to the community about the seriousness of such conduct, which would previously have been prosecuted as a common assault – an offence carrying a maximum penalty of 6 months in prison in England, or two years in NSW.

The offence of intentionally choking, suffocating or strangling in New South Wales 

Equivalent laws against intentionally choking, strangulation or suffocation were introduced in New South Wales four years ago through the Crimes Legislation Amendment Bill 2018 (NSW), which inserted a new section 37(1A) into the state’s Crimes Act in order to overcome the pre-existing requirement that such offences require proof of rendering a person ‘unconscious, insensible or incapable of resistance’.

Section 37(1A) contains no such requirement.

Rather, to establish the offence the prosecution need only prove beyond reasonable doubt that the defendant:

  1. Choked, suffocated or strangled another person,
  2. Did so intentionally, and
  3. Did not have the other person’s consent to do so.

The maximum penalty for the offence is five years in prison. 

That maximum increases to 10 years’ imprisonment where the defendant recklessly choked, suffocated or strangled another person and thereby rendered him or her unconscious, insensible or incapable of resistance (section 37(1)), or 25 years behind bars where such an act was intentional (section 37(2)).

The reasoning behind the new section

Section 37(1A) was introduced after a Parliamentary Research report identified that “Non-lethal strangulation is a significant form of domestic violence offending designed to exert physical and psychological control over victims. Non-lethal strangulation may also act as an indicator of future violence, including homicide.”

The report also noted that strangulation offences were not being charged under the offence of strangulation, but were rather being charged with offences such as common assault or assault occasioning actual bodily harm offences”.

Like in the United Kingdom, an objective of the new section was to send a strong message to would-be offenders that such conduct is extremely serious and will be dealt with as such.

All Australian states and territories have non-fatal strangulation laws, except Tasmania. 

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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