Content warning: This article on use of intoxicating substance discusses sensitive topics such as sexual assault. Reader discretion is advised.
The use of intoxicating substance and crime have gone hand-in-hand for centuries. From drunken brawls to drug-fuelled robberies, the use of intoxicating substance can often lead to criminal behaviour.
In Australia, the Crimes Act 1900 explicitly criminalises the use of intoxicating substance to commit an indictable offence. This offence can be committed in a number of ways, such as:
- by administering an intoxicating substance to someone without their consent, or
- by using an intoxicating substance to incapacitate someone to commit a crime against them.
This article will discuss sections 38 to 41 of the Crimes Act 1900.
Use of Intoxicating Substance to Commit an Indictable Offence
Section 38 of the Act deals with the use of an intoxicating substance to commit an indictable offence. This section punishes a person who does the following acts with a maximum penalty of imprisonment for 25 years:
- Administers an intoxicating substance to another person.
- Causes another person to take an intoxicating substance.
An indictable offence is a serious criminal offence in Australia. The accused has the right to have the matter heard before a judge and jury in a higher court, usually the District Court or the Supreme Court.
Examples of indictable offences in Australia include aggravated burglary, indecent assault, drug trafficking offences, manslaughter, and murder. These offences are also governed by the Crimes Act.
Intoxicating substance, under the Act, includes the following:
- Alcohol
- Narcotic drug such as opiods, cannabis, methadone, fentanyl, and opium.
- Any other substance that affects a person’s senses or understanding.
Spiking a Drink or Food With an Intoxicating Substance
Section 38A defines the following terms:
- “Harm” includes an impairment of the sense or understanding of a person that the person might reasonably be expected to object to in the circumstances.
- “Impair” refers to the act of causing someone’s senses or understanding to become weakened or damaged. Making them less able to appreciate or control their own conduct. It also includes further impair.
This section provides a maximum penalty of imprisonment for two years or 100 penalty or both, to a person who gives another person a drink or food for consumption:
- Containing an intoxicating substance that the other person is not aware what it contains, or
- Containing more of an intoxicating substance than the other person would reasonable expect it to contain.
Moreover, there must be an intent to harm on the part of the person giving the drink or causing another person to consume such drink.
Other things to note under this section are:
- Giving someone a drink or food includes preparing it for them or making it available for consumption by them for the purposes of this section.
- If a person has good reason to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food, then that person does not violate this section.
- A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section.
- A section 38A offence is a summary offence. Summary offences are minor criminal offences that are generally considered to be less serious than indictable offences in Australia.
Use of Intoxicating Substance: Scenario
For example, a group of individuals plan to sexually assault a woman. They decide to use Rohypnol, an intoxicating substance, and offer a drink spiked with the substance to a woman at a party. The intoxicating substance impairs the woman’s senses and understanding, making it easier to carry out the assault.
Taking advantage of the woman’s intoxicated state, the group members proceed to sexually assault her, knowing that the impaired woman will be less likely to resist or raise an alarm. If caught and convicted, the group members could face significant legal consequences for the use of intoxicating substance to commit sexual assault.
Use of Poison to Endanger Life or Inflict Grievous Bodily Harm
In the context of criminal law, substantial physical harm to a person is referred to as grievous bodily harm (GBH). This illegal conduct frequently results in a severe disfigurement, fractured bone, or wound that needs substantial medical attention. GBH is a serious crime that carries a heavy prison sentence, particularly if it was committed purposefully.
Other than the use of intoxicating substance to commit an indictable offence, Section 39 of this Act punishes a person who is guilty of this offence with a maximum penalty of imprisonment for 10 years. A person is guilty if:
- The person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and
- The poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and
- The person intends to injure, or is reckless about injuring, the other person.
Note that under this provision, the jury may acquit the defendant of the offence charged and find the defendant guilty of an offence against section 41 or section 41A.
Such acquittal is possible if, during the trial of a person charged with a violation of this section, the jury is not satisfied that the violation has been proven. Accordingly, the person is subject to penalty.
Use of Poison to Injure or to Cause Distress or Pain
The maximum penalty for using poison and other intoxicating substances to injure or to cause distress or pain upon another person is imprisonment for 5 years.
Section 41 provides that an offender is guilty if:
- The person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and
- The person intends to injure, or to cause distress or pain to, the other person.
A “noxious thing” refers to any substance or object that can cause harm or injury to a person or property. Examples of noxious things can include poisonous chemicals, dangerous weapons, and other objects that can cause harm or injury.
Call a Criminal Offence Lawyer
If you have been charged with a crime involving the use of intoxicating substance, such as DUI, public intoxication, using intoxicating substances to commit an indictable offence or drug possession, it is important to hire a lawyer as soon as possible.
Our criminal offence lawyers at JB Solicitors can help you develop a strong defense, and negotiate the best possible outcome in your case. We have the experience and knowledge to handle all aspects of an intoxicating substances case, from the initial arrest to the trial and sentencing.
Contact us here or visit our website to learn more.
