• Criminal law legislation attaches significance to ‘intoxication’ in multiple ways and makes assumptions about the effects of alcohol and other drugs on mind and body.
  • Some laws recognise that alcohol and drug consumption can impair cognition and decision-making, while others are primarily concerned with passing moral judgment on persons who become ‘dangerously’ intoxicated.
  • Generally, insufficient attention is paid to properly defining ‘intoxication’ in Australian criminal law.
  • This article reports on the research of a new and ongoing national study into intoxication and criminal law and seeks further input from the legal profession.

Concern about the problem of ‘alcohol-fuelled violence’ has had a significant effect on criminal law reform in recent years, especially since the deaths of Thomas Kelly and Daniel Christie in 2012 and 2013. In 2014, we saw the first major change to NSW homicide laws in more than half a century with the creation of the new offences of assault causing death (Crimes Act 1900 (NSW), s 25A(1)) and assault causing death while intoxicated (s 25A(2)) – the latter carrying a mandatory minimum sentence of eight years (s 25B).

In the same year, intoxication was expressly ruled out as a mitigating factor in all cases (Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)), and the NSW Court of Criminal Appeal made an emphatic statement that ‘violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence’ (R v Loveridge [2014] NSWCCA 120, at [103]).

The NSW Sentencing Council will soon release a report on ‘Alcohol and drug-fuelled violence’, including a recommendation on whether intoxication should be regarded as a mandatory aggravating factor for all crimes of violence.

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