WHAT IS A DANGEROUS DRUG?

The key legislation in Queensland regarding drugs is the Drugs Misuse Act and Drugs Misuse Regulations. This Act, and the regulations, set out what dangerous drugs are. The regulations specify in excess of one hundred drugs that are classed as dangerous drugs. The most common dangerous drugs that are seen in Queensland include cocaine, heroin, lysergide (LSD), amphetamines and methyl-amphetamines (speed), MDMA (ecstasy), and cannabis sativa (marijuana). It is against the law to possess, supply, produce or traffick any of these drugs in Queensland.

Schedule 1 dangerous drugs are considered to be the most dangerous, and offences relating to Schedule 1 drugs typically carry higher penalties than those relating to Schedule 2 dangerous drugs.

Schedule 1 dangerous drugs include Cocaine, Heroin, Phencyclidine and Lysergide (LSD)

Some Schedule 2 drugs include, Acetorphine, Amphetamines, Barbituric Acid, Benzethidine, Betocetylmethadol, Cannabinoids except Tetrahydrocannabinols, Cannabis Sativa, Coca Leaf, Methadone, Morpheridine, Morphine andOpium. 

POSSESSION OF A DANGEROUS DRUG

Possession of a dangerous drug is an offence. The penalty for this offence depends on the type of drug, and the quantity of that drug. The most common type of drug offence is possession of a small amount of marijuana. People convicted of this offence are usually, but not always, fined. At the other end of the scale, the maximum penalty for possessing a drug like heroin is 25 years imprisonment. However, it would be a very exceptional situation where a person would receive the maximum penalty.

The concept of possession is central to the offence, and a number of other offences contained in the Drugs Misuse Act. For a person to be in possession of a drug, they generally have to be aware of its existence, and be exercising control over it. The person must also know that the substance is a drug, or have reason to suspect that it is a drug.

A person does not have to own the drug to be in possession of it, nor do they have to intend to consume it. For example, a person who is minding a bag of marijuana for a friend, and who has the bag for only a few seconds, is still in possession of the marijuana. Similarly, a person who finds a bag of marijuana on the ground, and places it in their pocket, is in possession of the marijuana. However, in this last example, if the person could prove that they were on their way to a police station to hand in the marijuana, this would be a defence to a charge of possession of marijuana. Similarly, if the person could prove that they did not know that the contents of the bag were drugs, and had no reason to believe so, then they would succeed in defending the charge.

If a drug is found in a place where a person is an occupier, then that drug is deemed to be in that person’s possession unless they can show that they neither knew, nor had reason to suspect that the drug was in that place. For example, if a drug is found in a person’s house or car, then that person can be convicted of the offence of possession of a dangerous drug unless they can show that they did not know about the drug.

Persons charged with possession of small amounts of drugs usually must have their matters dealt with in the Magistrates Court. A person convicted for the first time for an offence of possession of a dangerous drug usually will not suffer the recording of a conviction against their name. However, it is most likely that a person convicted of a second offence will have a conviction recorded. Any person who is in this position should not contemplate self-representation if the maintenance of a conviction-free record is critical.

Possession of a small amount of marijuana is the most common charge that comes before courts. Usually these charges result in fines of between $300.00 and $1,000.00, unless the person has a significant criminal history.

After a person is convicted of drug offences, such as possession of dangerous drugs, the court orders that the drugs are forfeited to the Crown, to be destroyed by police. 

PRODUCING DANGEROUS DRUGS

A person who produces a dangerous drug is guilty of an offence. The penalties vary, however, some examples of maximum penalties are as follows :

• producing over 200 grams of cocaine or heroin - 25 years imprisonment;
• producing between 2 and 200 grams of heroin or cocaine - 25 years imprisonment, except where the person is a drug dependant person, in which case, the maximum is 20 years imprisonment;
• producing under 2 grams of heroin or cocaine - 20 years imprisonment;
• producing over 500 grams or 100 marijuana plants, or producing over 2 grams of amphetamines (speed) - 20 years imprisonment.

The penalties are very high, however, people convicted of these offences very rarely receive the maximum penalty.

Probably the most common example of producing dangerous drugs is that of growing marijuana plants. The offence can be very serious and lead to a term of imprisonment, such as when people grow large quantities of marijuana, with a view to selling it, and making money. At the other end of the scale, the severity of the offence can be relatively minor, such as when a person grows a small number of marijuana plants for personal use.

Cases of producing more serious drugs, such as amphetamines and methyl-amphetamines (speed), are becoming more common. People convicted of such offences are usually imprisoned, depending on the amounts. These charges are very serious, and should be treated accordingly. 

TRAFFICKING IN A DANGEROUS DRUG

A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of an offence. The issue at the centre of this charge is the definition of trafficking.

To be engaged in trafficking, the person must be disposing of the drug for money, or something else of value. In other words, the person must be selling it. A person who buys a drug, with the intention of selling it to another person, is involved in trafficking. However, a person who buys a drug with the intention of using it themselves is not involved in trafficking.

The maximum penalties for trafficking in drugs such as cocaine or heroin are 25 years imprisonment. Whilst people convicted of these offences very rarely receive the maximum, they are usually imprisoned for substantial periods of time, and it is not uncommon to see head sentences ranging from 10 - 15 years imposed. The term “head sentence” refers to the larger sentence imposed by a judge or magistrate who may, for example, order a defendant to serve a period of two years imprisonment, suspended after six months or, for example, with a recommendation for parole after six months. In either instance, two years would be the “head sentence”.

Trafficking is generally considered to be the most serious offence contained in the Drugs Misuse Act. 

SUPPLYING A DANGEROUS DRUG

A person who supplies a dangerous drug to another person is guilty of an offence. The offence is made more serious if the person supplying the drug :

• is an adult, and that person supplies the drug to a minor or an intellectually handicapped person;
• supplies the drug to a person in an educational institution, or a correctional institution; or
• supplies the drug to a person who does not know that they are being supplied with the drug.

These are called aggravated circumstances.

The term “supply” is given a wide meaning in the Drugs Misuse Act. It means to give, distribute, sell, administer, transport or supply. It also means to offer to do any of those things, or doing anything preparatory, or for the purpose of doing any of those things.

It is not necessary that the drug is supplied for some monetary or other gain. Giving a dangerous drug to another person constitutes supply. Offering to give a dangerous drug also constitutes supply, even though the drug may not eventually be supplied.

If a person is convicted of an offence of supplying a dangerous drug, the severity of the sentence will depend upon the amount of the drug supplied, to whom it is supplied, and whether the supply resulted in any gain to the person. 

PERMITTING A PLACE TO BE USED FOR A DRUG OFFENCE

It is an offence for a person who is the occupier, or who is concerned with the management or control of a place, to permit that place to be used for the commission of a drug offence. It is not necessary for the police to show that the person had any involvement in the offence, other than allowing the place to be used for the offence, and having knowledge that the place was being used for the offence. The person does not need to be benefiting from the commission of the offence. Examples of this offence are :

• the landlord of a property allowing the tenant to grow marijuana plants in the back yard;
• the owner of an office allowing someone to sell drugs from that office;
• a body corporate manager allowing someone to produce amphetamines from a spare garage in a block of units.

The maximum penalty for this offence is a period of imprisonment of up to fifteen (15) years. 

MISCELLANEOUS DRUG OFFENCES AND POLICE POWERS

Possessing Things - Bongs, Water Pipes etc.

A person must not have in their possession anything for use in connection with the administration, consumption or smoking of a dangerous drug. The most common reason that people are charged with this offence is that they are in possession of a bong, water pipe, or other instrument used for smoking marijuana. The police do not need to show that the thing was actually being used for a drug offence. They only need to show that its intended use was related to a drug offence. It is for this reason that people can be charged with possession of a bong, without actually being charged with possession of marijuana. However, it is more common for the person to be charged with both offences. In most cases, people who are convicted of this offence receive fines. The “thing” is forfeited to the Crown, and destroyed by police. 

Syringes

The Drugs Misuse Act places an obligation upon a person who has a hypodermic syringe or needle in their possession to use all reasonable care and take all reasonable precautions to avoid danger to the life, safety or health of another. A further obligation is placed on such a person, where the needle or syringe has been used in connection with the administration of a drug, to properly dispose of such syringe or needle. This means that the person must place the syringe or needle in a sealed puncture resistant container (sometimes called a “sharps container”) or give the syringe or needle to a medical practitioner or pharmacist. 

Police Powers

Police have relatively wide powers under the Drugs Misuse Act. Police are able to search vehicles that they reasonably suspect contain evidence of a drug offence. They are also able to detain and search a person and anything in their possession (such as a wallet or a bag) if they think that person has in their possession evidence of the commission of a drug offence.

If a police officer reasonably suspects that a drug offence has been committed and requires information from a person who they reasonably believe can assist in the investigation, then they can require that the person state their name and address and their date and place of birth. If the person who is requested to provide such information fails to do so, then they commit an offence punishable by one (1) months imprisonment, or a fine of up to $750.00.

Under the Police Powers and Responsibilities Act, a police officer who reasonably suspects that a person who has in their possession anything that may be a dangerous drug, may stop, detain, and search that person, or anything in that person’s possession. The police officer may form a reasonable suspicion if, say, the person smells of marijuana, or the person seems affected by a drug. 

THE COURT IN WHICH THE OFFENCE WILL BE DEALT

Drug offences are mainly dealt with in either the Magistrates Court or the Supreme Court. The person charged with the offence does not have a choice as to which court will deal with the matter - it depends upon the type of drug, and the amount of that drug. In cases where the matter can be dealt with in either court, it is up to the prosecution to decide. Certain offences, such as possession of a thing used in connection with a drug offence (eg. a bong, or syringe), must, in the majority of circumstances, be dealt with in the Magistrates Court. However, if the more minor offence is connected with another offence that is to be dealt with in the Supreme Court, then the minor offence will be dealt with in the Supreme Court at the same time.

The following is a guide to drug offences, and the courts in which those offences can be dealt with :

• Supplying cannabis, ecstasy or methyl-amphetamines or amphetamines (speed) - This charge can be dealt with in the Magistrates Court, unless there are aggravated circumstances. Other supply charges (such as supplying heroin or cocaine) must be dealt with in the Supreme Court.
• Producing drugs such as cannabis, ecstasy or amphetamines (speed) - This charge can be dealt with in the Magistrates Court in certain circumstances. The weight of the cannabis must be under 500 grams, or if the cannabis is in the form of plants, there must be under 100 plants, and the weight must be under 500 grams. The amount of amphetamines must be less than 2 grams. Other producing charges, such as producing a greater weight of cannabis or amphetamines, or producing any amount of heroin or cocaine, must be dealt with in the Supreme Court.
• Possession of drugs such as cannabis, ecstasy or amphetamines (speed) - Where people are charged with possession of less than 500 grams of marijuana, or less than 2 grams of amphetamines, they can have these charges dealt with in the Magistrates Court. Also, people charged with possession of less than 2 grams of heroin or cocaine can have their matters dealt with in the Magistrates Court. Charges of possession of more than these amounts of drugs must be dealt with in the Supreme Court.
• Possession of a thing used in connection with a drug offence - This charge is almost always dealt with in the Magistrates Court.
• Permitting the use of a place for the purpose of committing a drug offence - This charge is almost always dealt with in the Magistrates Court.

PENALTIES AND SENTENCING - DRUG OFFENCES

Most people charged with drug offences, or any offences for that matter, are concerned about the likely penalty they will receive. It is extremely difficult to predict the penalty or sentence a person will get for any given offence. The penalty or sentence will depend on the circumstances of the offence, the person’s previous convictions (if any), the person’s age, employment history, background, and a range of other factors. 

FURTHER INFORMATION 

This Information Outline is available courtesy of AussieLegal’s online legal information and law firm referral service. 

If you want further information, we recommend contacting the law firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at 3^rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000, or call them on (07) 3229 3166. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.