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Drug Charges - Possessing A Dangerous Drug - S9 DMA

The following drug charge article was written by a practicing criminal lawyer with experience in drug charges. For information on other drugs charges, visit our Drug Charges home page.

What the law says

Section 9 of the Drug Misuse Act 1986 states:

"A person who unlawfully has possession of a dangerous drug is guilty of a crime."

What does the prosecution have to prove?

To find you guilty of possessing dangerous drugs, the prosecution would have to prove the following elements beyond a reasonable doubt:-

  • That you unlawfully (i.e. without a defence or an excuse – see below for more);
  • Had possession (see below for more);
  • Of a dangerous drug (see below for more).

What does possession mean?

The prosecution must prove that the accused had both “knowledge” and “control” of the drug in order to prove possession. Therefore, it is sufficient that the prosecution proves you had knowledge of the existence and presence of the drug and you were able to exercise your control over it.

Can I still be charged with possession even if I didn’t have the drugs on my person?

Yes, you can. The prosecution only need to prove that you had the knowledge and control of the drug. The control component does not require that you actually exercise your control by having it on your person. You are able to be charged if you are physically separate from the drug but you have control over it in the sense that you can physically have it at any time.

What if the drugs were found in my home – is that still possession?

Section 129(1)(c) of the Drugs Misuse Act says:

Proof that a dangerous drug was at the material time, in or on a place of which that person was the occupier or concerned in the management or control of, is conclusive evidence the drug was in the person’s possession, unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place.

This situation would apply if the drugs were found somewhere other than on a person or in their direct control (i.e. the drugs were found in a living room or shared area).   Therefore, if you are the occupier of a house (i.e. you live there), then the Court can conclude that you had possession of the dangerous drugs. 

The onus is reversed in this situation onto the accused to prove that they did not have knowledge of (or had any reason to suspect that) the drugs in their house.

What are Dangerous Drugs?

A dangerous drug is a thing that is listed in either Schedule 1 or Schedule 2 of the Drugs Misuse Regulation 1987

Schedule 1 lists more serious drugs, including (but not limited to):-

  • Amphetamine;
  • Cocaine;
  • Heroin;
  • Lysergide (LSD);
  • Methylamphetamine; and
  • 3,4-Methylenedioxymethamphetamine (MDMA) (Ecstasy).

Schedule 1 also lists steroid drugs.

Schedule 2 lists over 100 less serious drugs. Some of these drugs are only listed if they are not in specified type of medicinal preparation. Drugs listed in Schedule 2 include (but are not limited to):-

  • Cannabis;
  • Codeine;
  • Methadone;
  • Morphine;
  • Opium; and
  • Oxycodone;
  • Psilocybin (magic mushrooms).

A dangerous drug can also include things that:-

  • have a chemical structure that is substantially similar to the chemical structure of a dangerous drug in Schedule 1 or 2; or
  • have a pharmacological effect that is substantially similar to the pharmacological effect of a dangerous drug in Schedule 1 or 2; or
  • is intended to have a pharmacological effect that is substantially similar to the pharmacological effect of a dangerous drug in Schedule 1 or 2.

What is the Maximum Penalty for Possession of a Dangerous Drug?

The maximum penalty for possessing dangerous drugs varies depending on the type of drug, the quantity of the drug, and whether there are circumstances to constitute a crime.

 

Maximum Penalty

  • The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and
  • Is of or exceeds the quantity specified in schedule 4.

25 years imprisonment

  • The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and
  • Is of or exceeds the quantity specified in schedule 3 but is less than the quantity specified in schedule 4; and
  • The accused satisfies the Court that they were a drug dependent person at the time of committing the offence.

20 years imprisonment

  • The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and
  • Is of or exceeds the quantity specified in schedule 3 but is less than the quantity specified in schedule 4; and
  • The accused does not satisfy the Court that they were a drug dependent person at the time of committing the offence.

25 years imprisonment

  • The dangerous drug is specified in the Drugs Misuse Regulation, schedule 2; and
  • Is of or exceeds the quantity specified in schedule 3.

20 years imprisonment

  • The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1 or 2; and
  • Is less than the quantity specified in schedule 3.

15 years imprisonment

Who is a drug dependent person?

A drug dependent person is someone who, as a result of repeated drug use, demonstrates impaired control or drug-seeking behaviour that suggests impaired control over their continued use of the drug.

They also suffer, or are likely to suffer, mental or physical distress or disorder, when the drug use ceases.

What are the quantities in Schedules 3 and 4?

The specified quantities listed in schedules 3 and 4 of the Drugs Misuse Regulation are relevant to the penalty (see above).

Some examples of schedules 3 and 4 quantities include:-

Schedule 1 drugs

Drug

Schedule 3

Schedule 4

Amphetamine

2.0g

200g

Cocaine

2.0g

200g

Lysergide (LSD)

0.004g

0.4g

Methylamphetamine

2.0g

200g

MDMA (ecstasy)

2.0g

200g

 

Schedule 2 drugs

Drug

Schedule 3

 

Cannabis

500g

 

 Are there any defences open to me if I am charged with possessing a dangerous drug?

There are a number of defences to a charge of possessing dangerous drugs.  These include:

  • that the drug was not a dangerous drug; 
  • mistake of fact (i.e. that you had an honest and mistaken belief that it was not a dangerous drug); and
  • duress (i.e. that you were not acting with free will).

If I am charged with possessing a dangerous drug, which court will my matter be in?

Possessing a dangerous drug is an indictable offence if the prosecution are alleging that you were in possession of the dangerous drug for a commercial purpose.  If this is the case, the matter will be heard in the Supreme Court.

If it is not alleged that the drugs were possessed for a commercial purpose, the prosecution may elect to have the matter dealt with summarily, which means that the matter will be heard in the Magistrates Court.

Am I eligible for Drug Diversion?

Section 122A of the Drugs Misuse Act states that:-

The court may, if the person is eligible under the Police Powers and Responsibilities Act 2000, section 379 to be offered an opportunity to attend a drug diversion assessment program, order the person to attend, and complete, a drug diversion assessment program as directed by a police officer.

Drug Diversion includes a combined assessment, education and counselling session with a qualified health service provider.  Attending a Drug Assessment and Education Session means that you will not have a conviction recorded for the minor drug offence.  Drug diversion may be offered twice. 

You are eligible to be offered to attend a drug diversion assessment program if you:-

  • Are charged with a minor drug offence; and
  • Have not committed another indictable offence in circumstances that are related to the minor drug offence; and
  • Have not previously been sentenced to serve a term of imprisonment for an offence of trafficking, supplying, or producing dangerous drugs, or trafficking in relevant substances or things ; and
  • Have not previously been convicted of an offence involving violence against a person or, if you have been convicted of an offence involving violence against a person, the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 has expired; and
  • Have admitted to committing the minor drug offence during an electronically recorded interview; and
  • Have not been offered the opportunity to attend a drug diversion assessment program.

Eligible drug offences include:-

  • Possessing dangerous drugs;  and
  • Possession of anything used in connection with the administration, consumption or smoking of a dangerous drug or used in connection with such a purpose.

For each dangerous drug mentioned in the charge, the quantity of the substances containing the dangerous drug must be less than the prescribed quantity.  The prescribed quantity of common dangerous drugs include:-

Drug

Prescribed quantity

Amphetamine

1.0g

Cocaine

1.0g

Lysergide (LSD)

0.00004g (3 tickets/tabs)

Methylamphetamine

1.0g

MDMA (ecstasy)

1.0g

Cannabis

50g

 Do I need a lawyer if I am charged with possession of a dangerous drug?

A conviction for possessing dangerous drugs (even small amounts of drugs) is a serious matter that can have a major impact on your life and future.  We strongly recommend that you talk to one of our lawyers, who can assist you by:-

  • Advising on your prospects of contesting a charge;
  • Guiding you through the court process;
  • Negotiating with the prosecution;
  • Suggesting ways to reduce penalty and the impact on your future;
  • Reducing some of your stress by answering the difficult questions; and
  • Appearing for you in court.

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