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 ; see also R v Bulut  NSWCCA 325 at .
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  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 , 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’.
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:
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:
Some of the possible defences can include:
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:
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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.
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.