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Using an intoxicating substance to commit an indictable offence

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW you can be charged with an offence if you give someone else alcohol, drugs or some other intoxicating substance with the intention of commiting certain types of offences called ‘indictable offences’. An ‘indictable offence’ is an offence which can be dealt with in the District Court. In New South Wales this includes any "table offence" and any "strictly indictable offence". A "table offence" is an offence where the accused person or the DPP can seek to have the matter finalised in the District Court. A "strictly indictable offence" is an offence that must be finalised in the District or Supreme Court.

This offence is known as Using an Intoxicating Substance to Commit an ‘Indictable Offence’.

You can be charged with the offence if you administer an intoxicating substance (such as alcohol or drugs) or if you cause someone to take an intoxicating substance, with or without their knowledge.

The maximum penalty for the offence is 25 years imprisonment.

In NSW, a court can impose any of the following penalties for a using an intoxicating substance to commit an indictable offence charge.


THE OFFENCE OF USING AN INTOXICATING SUBSTANCE TO COMMIT AND INDICTABLE OFFENCE

The offence of Using an Intoxicating Substance to Commit an Indictable Offence is contained in section 38 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.

Maximum penalty: Imprisonment for 25 years.

WHAT ACTIONS MIGHT CONSTITUTE THE OFFENCE OF USING AN INTOXICATING SUBSTANCE TO COMMIT AN INDICTABLE OFFENCE?

Examples of Using an Intoxicating Substance to Commit an Indictable Offence include:

  • Spiking a woman’s drink in a nightclub so you can take her home and rape her;
  • Getting a friend extremely drunk so you can steal her wedding and engagement ring; or
  • Putting a handkerchief soaked in chloroform over someone’s mouth to render them unconscious, kidnap them and hold them for ransom.

WHAT THE POLICE MUST PROVE

To convict you of Using an Intoxicating Substance to Commit an Indictable Offence the prosecution must prove each of the following matters beyond reasonable doubt:

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

POSSIBLE DEFENCES TO USING AN INTOXICATING SUBSTANCE TO COMMIT AN INDICTABLE OFFENCE

The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • 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; or
  • To raise necessity or duress as the reason for your conduct.

WHICH COURT WILL HEAR YOUR MATTER?

The charge is strictly indictable which means that the matter will be finalised the District Court or Supreme Court.


Types of penalties:

Jail for a using an intoxicating substance to commit an indictable offence charge: This is the most serious penalty for a using an intoxicating substance to commit an indictable offence charge and involves full time detention in a correctional facility. Read more.

Home Detention: Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive correction order for a using an intoxicating substance to commit an indictable offence charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence for a using an intoxicating substance to commit an indictable offence charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order for a using an intoxicating substance to commit an indictable offence charge (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond for a using an intoxicating substance to commit an indictable offence charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines for a using an intoxicating substance to commit an indictable offence charge: When deciding the amount of a fine for a using an intoxicating substance to commit an indictable offence charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10 for a using an intoxicating substance to commit an indictable offence charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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