Drug Possession
O’Brien & Hudson Solicitor’s specialises in defending drug-related charges of all kinds. One of the most common criminal offences in New South Wales is a charge of possession of drugs, and the law surrounding these crimes can be complex. A charge of possession is normally dealt with in the Local Court, and for a first time offender it is important to seek legal advice as early as possible to create a good chance of avoiding a criminal conviction.
A charge of possessing a drug falls under section 10 of the Drug Misuse and Trafficking Act 1985, and can incur a fine of $5,500 and up to two years of imprisonment. ‘Possession’ in the eyes of the law means the offender has exclusive physical control over the drugs in question. Note that there is no requirement that the offender is the actual owner of the drugs, and you can still be charged for ‘holding’ drugs on your person or at your home for someone else. In situations where it may be unclear who ‘possesses’ the drugs (such as in a car, in a tent or other communal space) the police may charge more than one person with ‘joint possession’. Where the drug in question is cannabis, for first time offenders where the amount is sufficiently small, police may give out a caution under the Cannabis Caution Scheme rather than lay charges.
If a police officer is conducting a search of a communal space such as this, it is important not to inform them of your possession, and to remember that you do not have to answer questions and can request to speak to a lawyer. It is not a defence to allege that the drugs are only in your possession temporarily.
A defence to a possession charge is that of ‘honest and reasonable mistaken belief’ that the substance was not a prohibited drug. In a scenario where there was no knowledge that the substance was in fact a prohibited drug, the charge can be defended.
Drug Supply
A charge of supply begins as a relatively minor offence, increasing with severity depending on the quantity in question. A small quantity supply charge will begin in the Local Court, with a maximum imprisonment term of 2 years or 5,500 penalty units. A trafficable quantity carries a maximum penalty of $11,000 and/or two years imprisonment. If the quantity is deemed more than the trafficable quantity, police may lay charges for supply even if there is no evidence of a supply taking place. An ‘indictable quantity’ is dealt with in the District Court, and the maximum penalty is $220,000 and/or 15 years imprisonment (however this differs for cannabis). Cannabis carries a maximum prison term of 10 years. More than a ‘commercial quantity’ carries a fine of $385,000 and/or 15 years of imprisonment, and more than ‘large commercial quantity’ carries a maximum penalty of $550,000 and/or life imprisonment (or 20 years for cannabis).
Note that these penalties increase if the drugs are allegedly supplied to someone younger than 16 years. The element of ‘supply’ can be satisfied in a number of different ways, and it is not necessary to prove that money was exchanged in the process.
Drug Manufacture
A charge of manufacture a prohibited drug falls under section 24 of the Drug Misuse and Trafficking Act 1985 and states that a person who manufactures or produces, or who knowingly takes part in the manufacture, of a prohibited drug is guilty of an offence.
The maximum penalty for a charge of manufacturing prohibited drugs is $220,000, and/or 15 years imprisonment. This term is lowered to ten years when the drug in question is cannabis. Where the manufacturing process has been exposed to a child, the maximum penalty is $264,000 and/or 18 years imprisonment. These penalties increase depending on the quantity of drugs. Where the quantity is ‘not less than the commercial quantity’ the maximum penalty is a $385,000 fine and/or 15 years imprisonment, and higher when exposed to a child.
Where a product contained a prohibited substance that is not intended for use as a drug, a defence is available under Section 35A of the Act. The offender must prove that the substance could not be readily extracted, or in a product not for human consumption, or that the substance is possessed for the purpose of its disposal as waste or its destruction.
A charge of ‘supply drugs on an ongoing basis’ is a serious offence designed to target dealers at all levels of the drug distribution chain. The charge falls under section 25A of the Drug Misuse and Trafficking Act 1985, and requires a person to supply a prohibited substance on three or more separation occasions occurring within a period of 30 consecutive days, for financial or material reward.
The maximum penalty for the offence is $385,000.00 and/or 20 years imprisonment. Generally a conviction for supply on an ongoing basis will result in penalties more severe than a standard supply charge. It is very difficult to avoid a gaol sentence for this charge as it is considered very serious, despite the fact that it may involve relatively minor quantities on three different occasions.
It is important to note that the drug does not necessarily need to be of the same type on the three separate occasions, and a person may be sentenced for three different types of drugs. Where three separate supply charges have been used to make out a charge of ‘supply on an ongoing basis’, the original supply charges will be dropped. You cannot be convicted twice in this regard; that is, you cannot be convicted of both ‘supply drugs on an ongoing basis’ as well as found guilty of the separate ‘supply’ charges.
Supply Drugs on Ongoing Basis
The offence of ‘supply a prohibited drug to a minor’ falls under section 25 of the Drug Misuse and Trafficking Act 1985. A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of a prohibited drug (other than cannabis leaf) to a person under the age of 16 is guilty of an offence.It is also an offence for a person on or above the age of 18 years to procure a person under the age of 16 years to supply, or take part in the supply of a prohibited drug (other than cannabis leaf).
The maximum penalty for supply drugs to a minor is $462,000.00 and/or 24 years imprisonment. If the prohibited drug is cannabis, then the maximum term of imprisonment is 18 years. Where the drug is not less than a commercial quantity, the maximum term of imprisonment will be 25 years. Procuring a minor to take part in the supply of drugs incurs a maximum penalty of $264,000.00 fine and/or 18 years imprisonment. Procuring a minor to take part in the supply of a prohibited drug not less than the commercial quantity incurs a maximum penalty of $462,000.00 and/or a term of imprisonment for 25 years.
One defence to the charge of supply prohibited drug to a minor is if the accused at the time of the offence honestly believed the minor to be over the age of 16 years. To prove this there must be evident reasonable cause to believe that the person was older than 16 years. If this can be established, the offence will be that of ‘supply prohibited drug’ rather than supply to a minor.