The Use of ‘Ice’ and the Criminal Justice System

There is an argument that coverage by the mainstream media of the drug crystal methamphetamine (or ‘ice’) has skewed both public perceptions about the drug itself and its users, as well as the way in which users are dealt with by those involved in the criminal justice system.

This article attempts to separate fact from fiction, and to explain how the use of drugs can impact on the way in which defendants are dealt with by the courts.

The effects of ‘ice’

Ice speeds up messages between the body and brain increasing energy, reducing appetite and increasing heart rate.

At moderate doses, it can make people nervous and agitated but, at high doses, it can cause more worrying effects including psychosis, paranoia and aggression.

A correlation between ice use and offending does exist, but the relationship is more complex than you would think.

The Drug Use Monitoring in Australia (DUMA) program detects the presence of illicit drugs in the urine of people entering custody in Australia. In 2018-19, fifty-two percent of detainees who participated in DUMA tested positive for methamphetamine. This was by far the most prevalent illicit drug detected, higher than cannabis.

Whilst this indicates a relationship between ice use and offending, research attempting to establish a direct link is mixed.

A 2006 paper looking at the relationship between ice use and violence in NSW found insufficient evidence for a direct-link between ice consumption and violence. However, it did note a relationship between methamphetamine-induced psychosis and offending.

More recent research has found that the relationship between ice use and violence is stronger if defendants are frequent users of high purity methamphetamine, as opposed to occasional or recreational users.

Moreover, ice use tends to be more common amongst people who have other risk-factors for offending – such as impulsiveness – meaning ice can exacerbate an existing predisposition to violence, rather than causing violent behaviour directly.

Overall, the relationship between ice use and offending is far from straightforward.

Is Ice Use A Defence?

There is a common misconception in the community that the criminal justice system treats drug users more leniently, or considers drug dependence (addiction) a ‘defence’.

This is not the case.

Part 11A of the Crimes Act 1900 (NSW) outlines the general principles that apply to self-induced intoxication, including whilst ‘high’ on illicit drugs such as ice.

A distinction is made between someone willingly getting high (self-induced intoxication) and people who are drugged without their consent.

Generally, self-induced intoxication is not relevant to determining a guilty mind for most offences (s428D), including murder, manslaughter and assault causing death (s428E).

If an offence requires asking the question of what a reasonable person would do, the court will consider the state of mind of a reasonable sober person, regardless of whether the defendant was high at the time (s428F).

Section 428C states that self-induced intoxication can be considered when an offence requires specific intent (for example, an intent to cause injury) but not if a person had intended to commit the crime before getting high or got high in order to commit the offence.

Overall, being high on ice at the time of offending it is not defence.

When Can Addiction Be Considered?

If someone is dependent (‘addicted’) to ice, this may be raised within the context of a diversion program, Drug Court referral or during the sentencing of an defendant.

Drug addiction is not inherently a mitigating factor in sentencing and courts do not normally take the fact that the defendant was addicted as a good reason to give a lesser sentence.

The reason behind this was outlined by Spigelman CJ in R v Henry (1999) 46 NSWLR 346 whilst sentencing a defendant for a robbery offence:

“The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse”

However, drug addiction may be considered in some circumstances including:

• Whilst assessing prospects of rehabilitation.
• As an indicator of relevant mitigating factors such as social disadvantage, poverty or mental health issues.
• If the defendant became dependant at a very young age, where it couldn’t be considered a personal choice.

Going to court?

If you have been accused of a criminal offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward.