Using an Intoxicating Substance to Commit an Indictable Offence

The offence of using an Intoxicating Substance to Commit an Indictable Offence carries a maximum penalty of 25 years imprisonment.

The offence of using an Intoxicating Substance to Commit an Indictable Offence is set out in section 38 of the Crimes Act 1900 (NSW). It criminalises the delivery of an intoxicating substance or the action of causing someone to consume the substance with the intention to enable a serious indictable offence to be committed. The legislation specifically provides that: 

A person who–

(a) administers an intoxicating substance to another person, or

(b) 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.

A serious indictable offence is defined as an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

An intoxicating substance includes alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding. 

The following acts constitute this offence:

• Putting Rohypnol in a person’s water without them knowing to render them incapacitated with the intention of having sexual intercourse with them.
• Intentionally getting a person intoxicated to the state they are unconscious to then steal their vehicle. 

What Must be Proven?

For a person to be found guilty of using an Intoxicating Substance to Commit an Indictable Offence, the Prosecution must prove each of the following matters beyond a 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.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

What are Possible Defences?

The following defences may be available for Using an Intoxicating Substance to Commit an Indictable Offence charge:

• Duress
• Necessity

Common Questions about Using an Intoxicating Substance to Commit an Indictable Offence

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In NSW, a Court can impose any of the following penalties for an Using an Intoxicating Substance to Commit an Indictable Offence charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for Using an Intoxicating Substance to Commit an Indictable Offence charge might jeopardise your job, any future jobs or make it difficult to obtain visas for overseas travel. Offences of this nature may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Offences of this nature will likely attract a term of imprisonment if convicted. 

Can the charge be dropped or downgraded? 

Sometimes charges can be withdrawn or downgraded to an offence that carries a lesser maximum penalty through negotiations with the Prosecution, especially if there are weaknesses in the Prosecution’s case.

What if the person consumed the intoxicating substance without my knowledge?

If you can prove that the person consumed the intoxicating substance after drinking your glass of water that was intended for yourself and not for them, then the prosecution will not be able to prove each of the elements of the offence and you should be found not guilty on that basis.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.