Using Intoxicating Substance To Commit an Indictable Offence

When a person uses an intoxicating substance with the intent to Commit an Indictable Offence, or causes another person to take an intoxicating substance, with intent to enable himself or herself, or to assist a third person, to commit an indictable offence they will likely be charged with this offence whether or not they committed the indictable offence after the intoxication.

An example of use intoxicating substance to commit an indictable offence is when you give someone else alcohol, drugs or some other intoxicating substance with the intention of committing certain types of offence most commonly a sex offence.

Other examples may include getting someone extremely drunk so you can steal from them. 



The offence of Using an Intoxicating Substance to Commit an Indictable Offence is contained in Section 38a of the Crimes Act 1900 and states:

‘A person who administers an intoxicating substance to another person, or causes another person to take an intoxicating substance, with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence’.

An offence under Section 38a of the Crimes Act 1900 (NSW) is aggravated if the administration of the substance was “potentially injurious of itself”: R v TA at [34]; see also R v Bulut [2004] NSWCCA 325 at [15].

The nature and elements of the offence of Using Intoxicating Substance were considered in Samadi v R (2008) 192 A Crim R 251 where Beazley JA said at [160] that the legislature and the Courts do not think drink or food spiking is a “soft crime” and “[t]hose who are convicted of such offence should expect to be dealt with by the courts on the basis that it is a very serious crime.”

In R v TA (2003) 57 NSWLR 444 at [34], the court said; 

‘… committing sexual offences whilst the victim has been drugged adds a significant degree of culpability to the administration of the drug intending to commit the offence. … I consider that the distinction between the offences is real and punishment for both should reflect the considerable additional criminality involved in fulfilling the intention with which the drug is given’.


Maximum/Possible Penalties

Using Intoxicating Substance to Commit an Indictable Offence can be punished with a prison sentence of up to 25 years. Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge of:

  • Full time Imprisonment
  • Intensive Corrections Order (ICO)
  • Community Correction Order (CCO)
  • Conditional release Order (CRO) (ie: bond)



Since Using Intoxicating Substance to Commit an Indictable Offence is a criminal offence, the burden of proof lies on the Prosecution. The prosecution must prove each of the elements in the charge beyond reasonable doubt being that:

  • You administered an intoxicating substance or caused an intoxicating substance to be taken by someone else; and
  • You did this with the intention of committing an indictable offence or assisting someone else in committing an indictable offence.



Some of the possible defences can include:

  • To argue that you did not administer an intoxicating substance or cause an intoxicating substance to be taken by someone else;
  • To argue that you did not intend to commit an indictable offence or assist someone else to commit an indictable offence;
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”; Or
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”.

This offence is also an offence requiring ‘specific intent’ meaning that if you were under the influence of drugs and/or alcohol it may mitigate your specific intention at the time of the alleged offence.


Our client was charged with among other offences giving a sip of alcohol to a girl under 10 years of age with the intention of committing an indicatable offence against her. We argue that even though a sip of alcohol was given there was no intent but a bad judgement call and the intent was also absent due to the fact that after the alcohol was ingested by the child the accused became concerned for the child’s welfare thus did not ever intend to commit an indicatable offence.



For Using an Intoxication Substance to Commit an indictable offence, Rep-Revive Criminal Lawyers® offers the following options:

  1. We initiate negotiation with prosecutors (police/DPP) (a term referred to as “plea negotiations”) and plead to withdrawal or downgrade of the charge or alternatively, seek amendments to the police fact sheets or documents.
  2. At the hearing/trial, Rep-Revive Criminal Lawyers® shall if you so instruct Plead Not Guilty and drive the argument based on prosecution’s inability to prove the elements of their accusation.
  3. Alternatively, Rep-Revive Criminal Lawyers® may plead guilty on your instructions however, the hearing shall revolve around the facts with an objective to obtain a moderate or minimum punishment.
  4. Lastly, Rep-Revive Criminal Lawyers® on your instructions enter a plea of guilt where you accept all the charges pressed by the police, but we present a case so solid on your behalf, with an objective to persuade and convince the Court to not record a criminal conviction against you.

For further information on your choices at law click on (CHOICES AT LAW tab on our website)



There are several reasons to engage Rep-Revive Criminal Lawyers®:

  •  We are always in your corner

At Rep-Revive Criminal Lawyers® we understand the gravity of a criminal charge on your reputation. Thus, we work with the utmost diligence and fervour to restore any dints to our client’s repute. We fight for your rights and liberty earnestly, and for the best results, irrespective of the intensity of the matter. All these factors have made us known in the industry as always being in our client’s corner. 

  •  We bring about excellent results

Rep-Revive Criminal Lawyers® is driven by positive outcomes and defend your case with skills which have been sharpened by years of experience. You will be dealing with lawyers who are proficient at their craft and will defend your case with rigour and an aim to have the matter withdrawn, downgraded, dismissed or the minimal penalty available at law imposed.

Rep-Revive Criminal Lawyers® are adept in all forms of advocacy and will present your case in the most skilful manner in Court. 

  • Your case will be in the hands of an experienced lawyer

Irrespective of your decision in deciding the course of the case, you will be supported and guided by Rep-Revive Criminal Lawyers® who have been in the provision of legal service for over 21 years. 

If you are caught up in this charge our team at Rep-Revive Criminal Lawyers® are best suited for representing your case.

Please contact our office on 0419 998 398 or 0492 857 721 or email for more information. The first consultation is free.

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