Drug Offences
What are Drug Offences?
There are various different drug offences, ranging from Possession, Supply and Cultivation of Drugs. Where a person is found in possession of a prohibited drug, the police will lay a charge under section 10(1) of the Drug Misuse and Trafficking Act 1985.
Where police allege you were supplying or taking part in the supply of a prohibited drug, you will be charged under section 25 of the Drug Misuse and Trafficking Act 1985.
The offence of cultivating cannabis is found in section 23 of the Drug Misuse and Trafficking Act 1985.
The offence of importing a prohibited drug is governed under federal legislation, being section 307 of the Criminal Code 1995 (Cth).
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Our dedicated criminal lawyers are equipped with dealing with drug offences of various levels of severity.
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It important to get detailed, accurate legal advice before entering any Pleas formally in court.
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FAQ
What do police need to prove for Possession of Drugs?
The police have to prove the following elements beyond reasonable doubt:
- A prohibited drug was in your ‘custody’ or ‘control’;
- The drug is in fact prohibited by law; and
- You knew that you had custody or control of that drug.
What if police find drugs in a shared space?
The prosecution must prove you had exclusive possession (ie you had control over the drug). If the drug is found in a car that other people use or were in, or a house where other people live, the police may have difficulty proving this offence against you in the absence of evidence linking the drug to you.
What if I wasn’t ‘caught’ selling by police? Can this still be a Supply?
Yes, it can. ‘Deemed Supply’ means where you had drugs in your possession and, where the amount is not less than the traffickable quantity, police say you had it in your possession for the purpose of supplying it. If this is not the case, then the onus is on you to prove on the balance of probabilities that the drugs were in your possession for a reason other than for supply.
What if the drug is fake?
Yes, it can. ‘Deemed Supply’ means where you had drugs in your possession and, where the amount is not less than the traffickable quantity, police say you had it in your possession for the purpose of supplying it. If this is not the case, then the onus is on you to prove on the balance of probabilities that the drugs were in your possession for a reason other than for supply.
What do police need to prove to charge me with ‘Importation’?
You can still be found guilty of a supply offence, even if it is a ‘fake’ drug. It is illegal in NSW to supply or intend to supply a substance that you have represented as a prohibited drug – for example, where a person crushes paracetamol in disguise of cocaine.
If I Plead Guilty, what should I do to prepare for sentence?
Import is defined in the Criminal Code as importing a substance into Australia, and includes bringing the substance into Australia, and dealing with the substance in connection with its importation. The prosecution is to prove the following elements beyond reasonable doubt:
- A person imported a substance intentionally into Australia;
- That substance was a border controlled drug;
- The quantity was above the commercial or marketable quantity.
How do police prove ‘custody or control’?
Having custody of the drug requires you to have immediate physical possession, even if momentarily. An example of this is where it is in your pocket.
Where you have control of it, this means that you intended to do something with it – ie use it, keep it, share it.
What does the law classify as ‘Supply’?
Supply can mean selling, agreeing to supply/sell, offering to supply/sell, distributing, having it in your possession for the purpose of supply/selling, sending, forwarding, receiving deliveries.
Is there any benefit to Pleading Guilty?
Ordinarily, where a person pleads guilty at the earliest opportunity – in this case, at the committal – the court allows for a mandatory 25% discount on sentence.
However, if the court is of the view that the culpability is so extreme that the community interest in punishment, community protection, retribution and deterrence is significant, the court can refuse to give a discount.
What if I was found selling drugs on multiple occasions?
You could be charged with ‘Ongoing Supply’. Police can charge you with a more serious offence under section 25A of the Drug Misuse and Trafficking Act 1985, if they can prove that you were involved in the supply of a prohibited drug on at least 3 separate occasions within a 30 day period.
What is cultivation of Drugs?
The maximum penalties vary as follows:
- Drug Possession: 2 years imprisonment and/or a fine of $2,200.
- Supplying Drugs: The maximum penalty for this offence is 15 years imprisonment and/or a fine of $2,200.
- Cultivating Drugs: The maximum penalty for this offence depends on the number of cannabis plants cultivated, and varies between 10 and 20 years imprisonment. If less than 250 cannabis plants are cultivated, the maximum penalty is 2 years imprisonment.
- Important of Drugs: The maximum penalty for this offence ranges between 2 years imprisonment up to life imprisonment.
What are the maximum penalties?
A person ‘cultivates’ if they scatter or sow cannabis seeds to plant, tend to, grow or nurture cannabis plants.
The police have to prove the following elements beyond reasonable doubt:
- A person takes, or participates in, any step, or causes any step to be taken, in the process of the cultivation; or
- A person arranged finance for a step in the cultivation process; or
- A person provided the premises in which any step in the cultivation process is taken, or permits and step in that process to be taken.
Drug Quantity Table
It is a common misconception that only the pure form of a drug is counted in a drug offence. The law in NSW is that quantity of a prohibited drug involves the admixture – meaning that where the weight is 5 grams however the purity is 20%, the relevant quantity for the purposes of the criminal charge is still 5 grams.
See the below table outlining the following drug quantities:
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