Use of a prohibited drug
It is common for people to think that you can only be charged with the supply or possession of a prohibited drug. However, you can actually be charged with using, or attempting to use, a prohibited drug. This offence is called ‘self-administration of prohibited drug’ – s.12 Drugs Misuse and Trafficking Act 1985.
The maximum penalty for this offence is 2 years’ imprisonment or a $2,200 fine (20 penalty units) – s.21 Drugs Misuse and Trafficking Act 1985.
A person who has possession of a prohibited drug, such as methamphetamine or cannabis, is guilty of an offence – s.10 Drugs Misuse and Trafficking Act 1985. The maximum penalty for this offence is 2 years’ imprisonment and/or a $2,200 fine (20 penalty units) – s.21 Drugs Misuse and Trafficking Act 1985.
If you have been charged with possession of drugs, then the prosecution must establish certain elements of the offence beyond reasonable doubt. These include that:
1. You had a drug in your possession – you may be charged with possession whether the drugs are on your person, in your home or in your car. Importantly, the drugs must be in your exclusive possession, so where you may live in a share house or the drugs were found in a common area then it may be more difficult to establish exclusive possession.
2. That it is a prohibited drug – in the legislation there is a list of prohibited drugs. Some of the substances on the list include: cannabis, ecstasy, amphetamines, cocaine, heroin and LSD.
3. You knew it was in your possession, or you knew of its likely existence and nature OR you believed that it was a drug.
Although most people think that having a small amount of drugs in their possession is not a major crime, it is difficult to avoid a conviction for this offence unless it is for a very small amount.
A conviction can have severe consequences for a person's employment or future travel plans. It is hard to get a visa to some countries with even a minor drug conviction.
You should speak to us as soon as possible about what you can do about the matter and what your options are.
Should you be pleading guilty and getting your character material together to fight against a conviction or jail term if you have a substantial amount of the drug or a bad record? Or should you be defending the matter as the search of your person or property was suspect or because you did not know the drug was on your premises? You need to contact us for advice.
If a person is in possession of the traffickable quantity of a prohibited drug, then they may be deemed as having supplied that drug – s.29 Drugs Misuse and Trafficking Act 1985.
The maximum penalty depends on the type of drug, the amount of the drug and which category under the Act the amount falls into (Small, Traffickable, Indictable, Commercial and Large Commercial) and whether the matter remains in the Local Court or is finalised in the District or Supreme Court. The maximum penalties are outlined below under the heading Drug Supply / Drug Trafficking.
The Drugs Misuse and Trafficking Act 1985 indicates that if you possess over the following amounts of drug, you are 'deemed' to have this drug in your possession for the purpose of supply:
Amphetamine (3g), Cannabis Leaf (300g), Cannabis Resin (30g), Cannabis Oil (5g), Cocaine (3g), Heroin (3g), Ecstasy (.75g), LSD (15DDU).
You may be able to argue that the deemed supply provisions do not apply in your case if you can show either of the following:
1. That the drug was in your possession for something other than supply such as for your own personal use or if you were holding onto the drug for someone else.
2. If the drug found was cannabis, that it was prescribed by a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinarian.
Drug supply / drug trafficking
A person who supplies, or who knowingly takes part in the supply, of a prohibited drug is guilty of an offence – s.25 Drugs Misuse and Trafficking Act 1985. Supply is defined very widely and covers transactional dealings, offering to supply in the future, buying a drug with pooled money and splitting the result, causing a package of drugs to be forwarded to another person, even passing a joint to another person to have a smoke.
The Courts treat drug supply as serious criminality, even for small amounts of the drug. The law in NSW is that the court must impose a full-time period of imprisonment to persons substantially involved in the supply of prohibited drugs unless there are exceptional circumstances - Regina v. Gu  NSW CCA 104. Are you substantially involved? Are there exceptional circumstances? Is there a defence?
The maximum penalties for supply will depend on the quantity of prohibited drugs that have been supplied. For example, listed below are the different quantities of certain prohibited drugs:
- Cannabis leaf: Small quantity – 30g, Traffickable quantity – 300g, Indictable quantity – 1,000g, Commercial quantity – 25kg, Large Commercial quantity – 100kg
- Ecstasy: Small quantity – 0.8g, Traffickable quantity – 3g, Indictable quantity – 5g, Commercial quantity – 250g, Large Commercial quantity – 1kg
- Cocaine / Heroin / Amphetamine: Small quantity – 1g, Traffickable quantity – 3g, Indictable quantity – 5g, Commercial quantity – 250g, Large Commercial quantity – 1kg
- Small quantity – maximum penalty of 2 years’ imprisonment and/or a $5,500 fine (50 penalty units) – s.30 Drugs Misuse and Trafficking Act 1985.
- Traffickable quantity (in the Local Court) – 2 years’ imprisonment and/or a $11,000 fine (100 penalty units).
- Indictable quantity:
o Local Court – 2 years’ imprisonment and/or a $11,000 fine (100 penalty units) – s.31 Drugs Misuse and Trafficking Act 1985.
o District Court – 15 years’ imprisonment (if cannabis, 10 years) and/or a $22,000 fine (200 penalty units) – s.32 Drugs Misuse and Trafficking Act 1985.
- Commercial quantity – 20 years’ imprisonment (if cannabis, 15 years) and/or a $385,000 fine (3,500 penalty units) – s.33 Drugs Misuse and Trafficking Act 1985.
- Large commercial quantity – life imprisonment and/or a $605,000 fine (5,500 penalty units).
If children or persons under the age of 16 have been found to be supplied a prohibited drug then this will likely increase the maximum penalty available to the Court.
Supply prohibited drugs on an ongoing basis
If you have been found to have supplied prohibited drugs on 3 or more separate occasions during a time period of 30 consecutive days, then you may be charged with the offence of supply prohibited drugs on an ongoing basis. This is a very serious charge and consequently carries a maximum penalty of 20 years’ imprisonment and/or a $385,000 fine – s.25A Drugs Misuse and Trafficking Act 1985.
If you have been charged with this offence, then the prosecution must establish certain elements of the offence beyond reasonable doubt. These include that:
1. You supplied a prohibited drug on 3 or more occasions
2. Those occasions were within a 30 day time period
3. You obtained money or a material reward as a form of compensation
Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.
YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH DRUG TYPE OFFENCE
1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Obtaining advice in relation to making a statement to police or not is the first step. You need early advice.
2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. Recovering your phone records, messaging and text records. Taking photos after a search warrant has been executed. You should find out who else might be a witness to what took place and get their details so that they can make a statement.
3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.
If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.
Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.