Using Intoxicating Substance to commit an indictable offence

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What is Using Intoxicating Substance to commit an indictable offence ?

Using Intoxicating Substance to Commit an Indictable Offence occurs when a person 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.

Section 3 of the Criminal Procedure Act 1986 (NSW) provides that an ‘indictable offence’ is: An offence (including a common law offence) that may be prosecuted on indictment.

An indictment is a formal document that the prosecution files with a court to commence a proceedings usually in the District Court.

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 i.e. a sex offence. Other examples include

  • Getting someone extremely drunk so you can steal from them; and/or
  • Spiking a person’s drink so you can take sexual advantage.

Case law/Jurisdiction

An offence of Using Intoxicating Substance is what is known as a strictly indictable offence which means that the matter will be finalised in the District Court or Supreme Court depending on the seriousness of the offence.

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.

The Law

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.

An offence under Section 38 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].

What must the prosecution prove?

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.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Using Intoxicating Substance to Commit an Indictable Offence.

To establish Using 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.

If you are charged with the offence of Using Intoxicating Substance to Commit an Indictable Offence what are your options?

National Criminal Lawyers have been successful in defending a number of Using Intoxicating Substance to Commit an Indictable Offence charges where the prosecution could not establish each of the elements of Using Intoxicating Substance to Commit an Indictable Offence.

NCL offer the following options for those who have been charged with Using Intoxicating Substance to Commit an Indictable Offence:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work to get you the best result.

Maximum 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.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with Using Intoxicating Substance to Commit an Indictable Offence and are experts at these hearings.

Defences

Some of the possible defences available for those charged with Using Intoxicating Substance to Commit an Indictable Offence 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”.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Using Intoxicating Substance to Commit an Indictable Offence 59% of offenders received an Intensive Corrections Order whereas 50% received a fine.

Possible Penalty's

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

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10.

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; and/or
  • New Conditional release Order (CRO)

Case Studies

Our client was charged with Using Intoxicating Substance to Commit an Indictable Offence and Sexual assault to which he pleaded not guilty. The court was not satisfied beyond reasonable doubt that our client was guilty of the offence as there were issues with the victim voluntarily taking drugs of her own violation and then to lawfully consenting. As a result all the charges were dismissed accordingly.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any use intoxicating substance offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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