It is a serious criminal offence to administer an intoxicating substance to another person with the intent of enabling or facilitating the commission of an indictable offence. This offence is outlined in Section 38 of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years’ imprisonment.

Overview of the Offence

Section 38 specifically targets conduct where a person gives or causes another person to consume an intoxicating substance in order to assist in the commission of a serious crime. This includes not only physically administering the substance but also any act that causes another person to ingest it.

The Importance of Intent

A key element of this offence is intent. For a conviction to occur, the prosecution must prove that the accused administered the substance with the specific purpose of aiding or enabling an indictable offence.

What is an Indictable Offence?

Indictable offences are serious criminal offences that are generally heard in higher courts such as the District or Supreme Court. These are distinct from summary offences, which are less serious and typically dealt with in the Local Court.

What the Prosecution Must Prove

To secure a conviction under Section 38, the prosecution must prove two main elements beyond a reasonable doubt:

1. The accused administered an intoxicating substance or caused another person to consume it.
2. This was done with the intent to facilitate or assist in the commission of an indictable offence.

Sentencing and Penalty Considerations

When determining the appropriate sentence, courts will consider:

• The nature and seriousness of the intended indictable offence
• The vulnerability of the victim
• The extent of planning involved
• Whether the offence was completed or interrupted

Judges also weigh mitigating factors such as the accused’s background, remorse, and prospects for rehabilitation.

Possible Defences

Potential legal defences may include:

• Lack of intent – If the accused did not intend to commit or enable an indictable offence.
• Mistaken identity – If the accused was not the person who administered the substance.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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