Published by Geoff Harrison | 15 March 2025
Prior to s21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (which was introduced 31 January 2014) at common law, intoxication generally could not mitigate the objective seriousness of an offence or an offender's moral culpability; however, an "out-of-character" exception was known to exist, but rarely applied. Section 21A(5AA) makes clear that "self-induced" intoxication is not a mitigating factor.
However, still an important issue in relation to sentencing is whether the intoxication can be considered or described as "self induced". As noted, prior to the introduction of s21A(5AA) by McClellan J in Bourke at [26]:
There was evidence before the sentencing judge which clearly indicated that it was probable that the applicant’s intake of alcohol was the most significant cause of the applicant’s behaviour. Intoxication, whether by alcohol or drugs may explain an offence but will ordinarily not mitigate the penalty save where the intoxication is the result of an addiction and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because they have committed an offence while intoxicated: R v Rosenberger (1994) 76 A Crim R 1.
It is the aspect of whether the addiction could be considered the result of free choice as to whether the intoxication is "self-induced". This has been recognised in cases such as Kelly by Rothman J at [46]:
The Court is thus required to re-sentence. As the Crown correctly notes, the provisions of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 precluded the use self-induced intoxication of an offender at the time of an offence as a mitigating factor in determining the appropriate sentence.
Even before the introduction of that relatively new sub-section, the intoxication by alcohol or drugs ordinarily did not mitigate the penalty to be imposed on a particular offender: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at [26].
Nevertheless, as McClellan CJ at CL in Bourke said, that ordinary rule does not apply where the intoxication is the result of an addiction and the original addiction did not involve a free choice. His Honour’s comments were that offenders could not expect reductions in sentence merely on account of the offence being committed while the offender was intoxicated.
The Crown submits that the effect of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 is also “to abolish” that part of R v Fernando (1992) 76 A Crim R 58 that the High Court approved in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. I do not agree with that last mentioned submission.
The effect of Fernando and of Bugmy is to recognise that, in certain communities to which the circumstances in Fernando and Bugmy applied, the abuse of alcohol and drugs is so prevalent and accompanied by violence that the intoxication no longer fits the description of being “self-induced”. In that way, the intoxication fits the description to which McClellan CJ at CL referred in Bourke.
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Most importantly, the learned sentencing judge took into account his finding that the applicant had used drugs of various kinds since he was 13 years of age and has been on and off a methadone programme for his heroin/morphine addiction since 2003. At the age of 13 years, the applicant was not at an age of “rational choice” that would give rise to the full responsibility for the moral culpability and the predictable consequences of a choice to become addicted: see Bourke, supra at [28], citing R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [185]. The psychiatric evidence that is now before the Court confirms the sentencing judge’s findings.
Proving that the intoxication was not self-induced due to addiction is not an easy task, as noted by Simpson AJA in Pender at [60], that, "[a]s a proposition, it calls for a considerable depth of examination".
Other Sources:
Cases:
Bourke v R [2010] NSWCCA 22 (at [26])
R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111 (at [184]
Kelly v R [2016] NSWCCA 246 [at [47] - [48]}
Tepania v R [2018] NSWCCA 247 ([122] - [128])
Fisher v R; R v Fisher [2021] NSWCCA 91 (at [220])
Pender v Rex [2023] NSWCCA 291 {at [52])
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 21A
21A AGGRAVATING, MITIGATING AND OTHER FACTORS IN SENTENCING
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(5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.
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"self-induced intoxication" has the same meaning it has in Part 11A of the Crimes Act 1900.
CRIMES ACT 1900 - SECT 428A Definitions
Definitions
In this Part--
"drug" includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966.
"intoxication" means intoxication because of the influence of alcohol, a drug or any other substance.
"offence" includes an attempt to commit the offence.
"offence of specific intent" is defined in section 428B.
"relevant conduct" means an act or omission necessary to constitute the actus reus of an offence.
"self-induced intoxication" means any intoxication except intoxication that--
(a) is involuntary, or
(b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or
(c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer's instructions.
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