Drug Offences

drug 1024x314 1

There are a number of offences which may be committed in relation to drugs.  This section sets out those offences and the penalties which can be imposed in relation to them.

There are a variety of offences which people can be charged with ranging from possession or use of drugs to supplying drugs to other people.

Our solicitors can provide detailed advice in relation to all aspects of the law relating to drugs.

Unless otherwise stated, all references to legislation in this section refer to the Misuse of Drugs Act 1981(WA) (The Act).

Pursuant to s.32 of the Act, there is no time limit on when a prosecution for a drug offence may be commenced.

WHAT ARE ‘DRUGS’?

Prohibited Drugs

Prohibited drugs are defined in s.4 of the Act as:

  • s.3 Drugs of addiction; and
  • s.3A Specified drugs; and
  • Drugs specified in Schedule I.

Drugs of addiction

Drugs of addiction are defined in s.3 of the Act as:

  • A Schedule 8 poison as defined in the Medicines and Poisons Act 2014 (WA) section 3; or
  • A Schedule 9 poison as defined in the Medicines and Poisons Act 2014 (WA) section 3.

These schedules refer to the Poisons Standard October 2017.  This standard is a national standard which seeks to make the scheduling of medicines and poisons standard across Australia.  Schedule 9 of the Poisons Act 1964(WA) also stipulates certain drugs to be drugs of addiction.  This schedule can be amended at any time to include substances which are not included in the national standard.

Some common examples of these drugs are:

  • Cannabis;
  • Cocaine;
  • Fentanyl;
  • Ketamine;
  • Methadone;
  • Metamfetamine (methamphetamine – ICE)
  • Morphine;
  • Opium;
  • Oxycodone;
  • Heroin;
  • LSD;
  • MDMA

As this list illustrates, many drugs available on prescription are also classed as drugs of addiction.

Specified Drugs

Specified drugs pursuant to s.3A of the Act are drugs which the relevant Minister declares to be such a drug.  This enables the Minister to declare substances to be a specified drug when new substances appear.  The Minister can make a declaration when satisfied that there is a high propensity for a substance to be misused, abused, used illicitly or diverted for the manufacture of such a substance.  Ephedrine is an example of a substance which has been declared as a “specified drug”.

Drugs Specified in Schedule I

These drugs are well known and the vast majority also appear in schedules 8 and 9 of the Medicines and Poisons Act 2014 (WA).  The drugs specified in schedule 1 of the Misuse of Drugs Act 1981 (WA)are:

  • Cocaine, ecgonine; heroin, morphine and their respective salts;
  • Opium;
  • Any substance containing not less than;
    • 0.02% of anhydrous morphine; or
    • 0.1% of cocaine or ecgonine;
  • Any derivative of cocaine; and
  • Cannabis or cannabis resin or any other cannabis derivative.

Prohibited Plants

Prohibited plants are defined in s.4(2) of the Act and include, plants from which a drug of addiction may be obtained, derived or manufactured. This includes, for example, cannabis and opium poppy.  However, non-viable opium poppy seeds and processed industrial hemp are not included as prohibited plants.

WHEN CAN POLICE SEARCH FOR DRUGS?

Search Without a Warrant

Pursuant to s.23 of the Act,under certain circumstances Police can search:

  • A person;
  • A vehicle in the possession of that person; and
  • Any package of baggage in possession of that person;

if the Police reasonably suspect that anything whatsoever in the possession of the person:

  • Relates to, or is suspected of relating to, the commission of an offence against this Act or may relate to the commission of such an offence;
  • Has been, is suspected of or may be used for the purpose of committing an offence against this Act; or
  • May provide evidence of the commission of an offence against this Act.

If the Police are searching a person that search must be carried out by:

  • A person of the same sex as the person being searched; or
  • A medical practitioner.

The police can detain a person and – if necessary – convey them to a place to allow them to comply with this requirement.  However, the police cannot detain the person for any longer than is necessary to carry out the search.

Search with a warrant

Pursuant to s.24 of the Act, police may obtain a search warrant if they can satisfy a Justice of the Peace is satisfied that there is in any vehicle, premises or other place anything whatsoever that:

  • Relates to, or is suspected of relating to, the commission of an offence against this Act or may relate to the commission of such an offence;
  • Has been, is suspected of or may be used for the purpose of committing an offence against this Act; or
  • May provide evidence of the commission of an offence against this Act.

A search warrant can be executed by the police at any time within 30 days of being issued.  Police can search anything and any person in the vehicle, premises or other place and, if necessary, can use reasonable force to do so.  If the police search a person, that search must be carried out by:

  • A person of the same sex as the person being searched; or
  • A medical practitioner.

Police can detain a person and, if necessary, convey them somewhere for the purposes of searching them.  However, a person cannot be detained for longer than is necessary to carry out the search.

Powers Ancillary to Power of Search

When the police conduct a search, either with or without a search warrant they can, pursuant to s.25 of the Act:

  • Seize and detain any books, papers or documents – or make copies of them – that are found during the search; and
  • Require the person to give – or cause to be given – to the police any information that they are able to give.  This relates to information about the sale, manufacture of or supply of prohibited drugs or plants.

Pursuant to s.25(2) of the Act, a person who does not comply with a requirement to provide such information commits a simple offence.  This includes refusing to give the information or deliberately giving false or misleading information.  Any such information provided by a person cannot be used in evidence against them except if it is to prove that they gave false or misleading information.

CANNABIS INTERVENTION

Pursuant to Part IIIA of the Act, under certain circumstances, a person can avoid being charged and going to court in relation to “minor cannabis related offences”.

A person who Police reasonably believe has committed a “minor cannabis related offence” may give a Cannabis Intervention Requirement (CIR) to the person.  However, such a requirement cannot be given if the person:

  • Is an adult who has previously been convicted – as an adult – of a “minor cannabis related offence”; or
  • Is a child who has been convicted of, or given a CIR, for two or more separate incidents.

What is a Cannabis Intervention Requirement (CIR)?

As set out in s.8F of the Act, a CIR is a form that:

  • Contains a description of the alleged offence/s; and
  • Informs the person that:
    • The person may elect to be prosecuted in court for the offence if they wish and how they may do that;
    • If the person does not want to be prosecuted in court they may complete a Cannabis Intervention Session (CIS) within 28 days after receiving the CIR; and
    • Informing the person how they may arrange to complete a CIS.

If the person is a young person, a police officer who gives a CIR must ensure that a responsible adult is given a copy of the CIR as soon as practicable unless;

  • Police cannot locate a responsible adult; or
  • It would not be appropriate to do so.

A person is a young person if they are under the age of 18, or were under the age of 18, when the minor cannabis offence was committed.

A CIR can be withdrawn by police but only prior to the completion of a CIS. 

Minor Cannabis Related Offence

A minor cannabis related offence is defined in s.8B of the Act and is either:

  • Possession of cannabis, pursuant to s.6(2) of the Act, provided the quantity is 10 grams or less and does not involve cultivation of cannabis, cannabis resin or any other cannabis derivative; or
  • Possession of drug paraphernalia, pursuant to s.7B(6) of the Act, which has cannabis in or on it.

A CIR is to be given as soon as practicable after the alleged offence but not later than 60 days after.

Referral of Young Person at Risk to Juvenile Justice Teams

In preference to charging a “young person at risk” under the Misuse of Drugs Act 1981 (WA), police are to refer the young person to a Juvenile Justice Team in accordance with s.8H of the Act.  A “young person at risk” is a young person:

  • Who has previously been convicted of, or given a CIR, for two or more separate incidents; or
  • Who has been given a CIR but who has not completed a CIS within 28 days (or longer if further time was allowed); unless:
    • The CIR has been withdrawn; or
    • The person has elected to be prosecuted in court.

Cannabis Intervention Sessions (CIS)

The purpose of a CIS, as set out in s.8J of the Act, is to inform people about:

  • The adverse social and health consequences of cannabis use;
  • The laws relating to the use, possession and cultivation of cannabis; and
  • Effective strategies to address cannabis use.

A CIS is to be completed within 28 days of receiving a CIR from police.  Further time may be allowed to attend the CIS if required.

The Benefits of Completing a CIS

As set out in s.8K of the Act, a person who completes a CIS within 28 days of receiving a CIR (or any longer period as allowed) will avoid being required to attend, and be sentenced by, a court for the offence for which the CIR was given.  Further, the completion of a CIS cannot be taken as an admission of guilt for the offence in any criminal or civil proceeding.

Once a person completes a CIS they are given a certificate of completion.  A copy of that certificate is also forward to the Commissioner of Police.

DECALRING A PERSON A DRUG TRAFFICKER

Pursuant to s.32A of the Act, a person can, on the application of the Director of Public Prosecutions or a Police Prosecutor, be declared to be a Drug Trafficker by the court.  Such an application can be made at the time of, or within 6 months of, a person being convicted of:

  • A “serious drug offence” and has in the ten years prior to that serious drug offence was committed, been convicted of 2 or more:
    • “Serious drug offences”; 
    • offences, one or more of which are “serious drug offences” and one or more of which are “external serious drug offences”; 

or:

  • “A serious drug offence” in respect of:
    • A “prohibited drug” in a quantity which is not less than the quantity specified in Schedule VII of the Misuse of Drugs Act 1981 (WA); or 
    • Prohibited plants in a number which is not less than the number specified in Schedule VIII of the Misuse of Drugs Act 1981 (WA);

or:

Serious Drug Offence

A “serious drug offence” is a crime under s.6(1), 7(1), 33(1)(a) or 33(2)(a) of the Misuse of Drugs Act 1981 (WA).  Those offences relate to:

  • The possession of prohibited drugs or plants with intent to sell or supply; and
  • Selling or supplying or offering to sell or supply prohibited drugs or plants; and
  • Manufacturing or preparing a prohibited drug; and
  • Cultivating a prohibited plant with the intent to supply or sell.

External Serious Drug Offence

An “external serious drug offence” is an offence against a law of the Commonwealth, of another State, or of a Territory, which offence is prescribed to correspond to a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a) of the Misuse of Drugs Act 1981 (WA).

Relevant Drug Offence

A “relevant drug offence” is an offence of:

  • Being the occupier or knowingly being concerned in the management of premises being used for:
    •  The purpose of manufacturing or preparing prohibited drugs or plants for use; or
    • The purpose of manufacturing, preparing, selling, supplying or using a prohibited drug or prohibited plant;
  • The possession of prohibited drugs or plants with intent to sell or supply;
  • Selling or supplying or offering to sell or supply prohibited drugs or plants;
  • Manufacturing or preparing a prohibited drug;
  • Cultivating a prohibited plant with the intent to supply or sell;
  • Possession of pre-cursor substances or items; and
  • Attempting or conspiring to commit the above offences or becoming an accessory after the fact in relation to any of the above offences.

Declared Criminal Organisation

A “declared criminal organisation” is an organisation which has been declared to be a criminal organisation pursuant to the Criminal Organisations Control Act 2012 (WA).  An examples of this is an outlaw motorcycle gang.

The Effect of Being Declared a Drug Trafficker

Being declared by a court to be a drug trafficker is a very serious matter.  It does not affect the penalty for the charge or charges the person is convicted for; however, it enlivens s.8 of the Criminal Property Confiscation Act 2000 (WA) (The CPC Act).

Once a person is declared to be a drug trafficker the following property can be confiscated from the person:

  •  All the property that the person owns or effectively controls at the time the declaration is made; and
  • All property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the CPC Act.

The effect of such a declaration is extremely serious and any person who has been charged with an offence relevant for this section should seek urgent and immediate advice.

TYPES OF DRUG RELATED OFFENCES

Offences can be simple offences or indictable offences.  Simple offences are offences which are heard exclusively in the Magistrates’ Court.  Indictable offences are offences which are tried on indictment in the District or Supreme Court.  However, many indictable offences are known as “each way offences” which means they can be tried on indictment or summarily.

Possession or Use of a Prohibited Drug

A person who knowingly possesses or uses a “prohibited drug” commits a simple offence pursuant to s.6(2) of the Act

A person is not guilty of this offence if:

  • They are authorised under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA) and they possess the drug/s in accordance with that authority;
  • They had the drug/s in their possession only for the purpose of delivering them to a another person who was authorised under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA); or
  • They are an analyst, botanist or other expert and they possess the drug/s for the purpose of analysing or examining them in that capacity; and
  • A person is not guilty of using a prohibited drug if they can prove they were authorised under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA); and
  • A person is not guilty of possessing a prohibited drug by reason of manufacturing, preparing, selling or supplying  the drug if they can prove they were authorised to do so under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA).

Possession and Knowledge

Possession does not need to be immediate.  A person can be in possession of drugs even if they are not actually holding them.  If a person can be shown to exercise some control over the drugs they are in possession of them.  A person who controls or has dominion over drugs is in possession of them.  For example, if drugs are located in a locker to which only the person has access, that person is in possession of the drugs.  More than one person can possess drugs if they both have knowledge of the drugs and can be shown to exercise some control or dominion over them.

If someone moves drugs for someone else, that person has possessed the drugs for the purpose of this offence if they knew what they were moving was drugs.  This can be called “fleeting possession”.

Knowledge that the substance was drugs only requires that the person have an awareness that the substance they possess is likely to be a prohibited drug.

Possession of a Prohibited Plant

A person who knowingly possesses or cultivates a prohibited plant commits a simple offence pursuant to s.7(2) of the Act.

A person does not commit this offence if:

  • They were authorised by or under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA)to have possession of a prohibited drug obtainable from the plant;
  • They had possession of the plant only for the purpose of delivering it to a person authorised to have possession of a drug obtainable from the plant under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 and they took all reasonable steps to deliver the drug to the person; or
  • They had possession of the plant for the purpose of analysing, examining or otherwise dealing with it for the purposes of this Act in their capacity as an analyst, botanist or other expert.

Possession and Knowledge

Possession does not need to be immediate.  A person can be in possession of prohibited plants even if they are not actually holding them.  If a person can be shown to exercise some control over the plants they are in possession of them.  A person who controls or has dominion over prohibited plants is in possession of them.  For example, if plants are located in a room or area to which only the person has access, that person is in possession of the plants.  More than one person can possess plants if they both have knowledge of the plants and can be shown to exercise some control or dominion over them.

If someone cultivates or possesses the prohibited plants for someone else, that person has possessed the plants for the purpose of this offence if they knew what they were possessing or cultivating was prohibited plants.  This can be called “fleeting possession”.

Knowledge that the substance was a prohibited plant only requires that the person have an awareness that the substance they possess is likely to be a prohibited plant.

Sell/ Supply a Prohibited Drug or Possess a Prohibited Drug with Intent to Sell/ Supply or Manufacture/ Prepare a Prohibited Drug

Pursuant to s.6(1) of the Act, it is a crime for a person to:

  • Possess a “prohibited drug” with the intention of supplying or selling the drug;
  • Manufacture or prepare a “prohibited drug”; or
  • Sell or supply or offer to sell or supply a “prohibited drug” to another person.

Under the Misuse of Drugs Act 1981 (WA), “to supply”includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.

If the quantity of prohibited drugs is less than the quantity listed in Schedule III of the Misuse of Drugs Act 1981 (WA), the matter can be heard summarily in the Magistrates; Court.  If the quantity is greater than that listed in the schedule, the matter must be heard on indictment.  For example, if a person is charged with possessing less than 4.0 grams of cocaine, the matter can be heard summarily.  If the quantity of cocaine is more than 4.0 grams it must be heard in the District Court.

A person does not commit this crime if:

  • They are authorised under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA) and they possess the drug/s in accordance with that authority;
  • They had the drug/s in their possession only for the purpose of delivering them to a another person who was authorised under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA); or
  • They are an analyst, botanist or other expert and they possess the drug/s for the purpose of analysing or examining them in that capacity; and
  • A person is not guilty of possessing a “prohibited drug” by reason of manufacturing, preparing, selling or supplying  the drug if they can prove they were authorised to do so under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA).

Presumption of Intent to Sell or Supply

A person can also be convicted of this crime on the basis of the quantity of the “prohibited drug” that they possessed, without the police needing to prove an actual intention to sell or supply.  A person is presumed to have the intention to sell or supply if the quantity of the prohibited drug exceeds the amount which is set out in Schedule V of the Misuse of Drugs Act 1981 (WA).  For example, a person who possesses not less than 2.0 grams of amphetamine is presumed to have the intention to sell or supply that drug.

To rebut this presumption, it is up to the person to prove that they did not have the intention to supply or sell the prohibited drug.

Sell/ Supply a Prohibited Plant or Possess a Prohibited Plant with Intent to Sell/ Supply or Manufacture/ Prepare a Prohibited Drug

Pursuant to s.7(1) of the Act, it is a crime for a person to:

  • Possess or cultivates a “prohibited plant” with the intention of supplying or selling the plant or any derivative of the plant to another person; or
  • Sell or supply or offer to sell or supply a “prohibited plant” to another person.

Under the Misuse of Drugs Act 1981 (WA), “to supply”includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.

If the quantity of prohibited plant is less than the quantity listed in Schedule IV of the Misuse of Drugs Act 1981 (WA), the matter can be heard summarily in the Magistrates; Court.  If the quantity is greater than that listed in the schedule, the matter must be heard on indictment.  For example, if a person is charged with possessing less 20 cannabis plants, the matter can be heard summarily.  If the quantity of cannabis plants is greater than 20 the matter must be heard in the District Court.

A person does not commit this offence if:

  • They were authorised by or under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA) to have possession of a “prohibited drug” obtainable from the plant;
  • They had possession of the plant only for the purpose of delivering it to a person authorised to have possession of a drug obtainable from the plant under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 and they took all reasonable steps to deliver the drug to the person; or
  • They had possession of the plant for the purpose of analysing, examining or otherwise dealing with it for the purposes of this Act in their capacity as an analyst, botanist or other expert.

Presumption of Intent to Sell or Supply

A person can also be convicted of this crime on the basis of the quantity of the “prohibited plant” that they possessed, without the police needing to prove an actual intention to sell or supply.  A person is presumed to have the intention to sell or supply if the quantity of the prohibited drug exceeds the amount which is set out in Schedule VI of the Misuse of Drugs Act 1981 (WA).  For example, a person who possesses not less 10 cannabis plants is presumed to have the intention to sell or supply that plant.

To rebut this presumption, it is up to the person to prove that they did not have the intention to supply or sell the prohibited plant.

Offences Concerned with Prohibited Drugs and Plants in Connection with Premises

Pursuant to s.5 of the Act, it is an offence for a person;

  • To be the occupier of premises and knowingly permit those premises to be used for the manufacture, preparation, sale, supply or use of a prohibited drug or plant;
  • To be the owner or lessee of premises and knowingly permit the premises to be used for the purpose of using a prohibited drug or plant;
  • To be knowingly concerned in the management of premises being used for any of the purposes above; or
  • To be found in any premises which is – at the time – being used for smoking a prohibited drug or prohibited plant other than cannabis.

An offence against this section is a simple offence which is heard in the Magistrates Court.

Attempting to Commit an Offence

Pursuant to s.33(1) if the Act, a person who “attempts” to commit an offence under the Misuse of Drugs Act 1981 (WA) is held to have committed the actual offence they were attempting to commit.

A person is said to have attempted to commit an offence when they begin to put their intention into execution by doing an act or acts which are more than merely preparatory to the commission of the actual offence.  Whether the acts done by a person are sufficient to establish that they attempted to commit the offence will depend on the circumstances of the matter as a whole.

A person has still attempted to commit an offence even if their attempt is prevented by circumstances beyond their control.  This also applies if the commission of the actual offence would have been impossible because of factors which the person was not aware of.

If the actions of someone are sufficient to be considered an attempt to commit the offence, they have still committed the offence even if they decide not to further pursue the commission of the actual offence.

Conspiring to Commit an Offence

Pursuant to s.33(2) of the Act, a person who “conspires” to commit an offence under the Misuse of Drugs Act 1981 (WA) commits the offence they were conspiring to commit.

There are four elements to establishing that a person was conspiring to commit an offence:

  • There was an agreement;
  • That agreement was between two or more people;
  • The agreement was to do an unlawful act; and
  • The person had an intention to participate in that unlawful act.  This intention must be more than the person foreseeing that the probable consequence of their conduct might result in the performance of an unlawful act.

It is not necessary that a person knows all of the details of how the unlawful act is to be carried out and nor is it necessary that the parties be in direct communication with each other. 

A person has still conspired to commit an offence even if the commission of the actual offence would have been impossible because of factors which the person was not aware of.

Inciting Another Person to Commit an Offence or Becoming an Accessory After the Fact

These two offences are found in s.33(3) of the Act.

Inciting

A person “incites” another to commit an offence if they solicit or attempt to persuade another person to commit an offence.  A person who incites another person to commit an offence is deemed to have committed that offence.

Accessory After the Fact

A person is an “accessory after the fact” if they assist another person who, to their knowledge, is guilty of an offence, in order to positively assist that person to escape being caught or punished for the offence they have committed.

A person who becomes an “accessory after the fact” is deemed to have committed the offence committed by the person who committed the actual offence.

In Western Australia, a spouse cannot become an accessory after the fact where the person who committed the offence is their spouse.

Selling or supplying a thing knowing it will be used in hydroponic cultivation of prohibited plants

Pursuant to s.7A(1) of the Act, it is an indictable offence to sell or supply, or offer to sell or supply, any item that the person knows will be used to cultivate a “prohibited plant” hydroponically.  Plants are grown hydroponically when they are grown without soil, using mineral nutrient solutions in a water solvent.

If a person is convicted of this offence, the court may – if the Director of Public Prosecutions of the police prosecutor makes an application – order that the person be prohibited from selling any item which can be used to grow any plant hydroponically for up to 2 years.  A person who contravenes such an order commits a simple offence and is liable to a fine of up to $2,000.00 and/ or imprisonment for 2 years.  This offence is heard in the Magistrates Court.

Possession of Pre-cursor Substances and Items

Pursuant to s.14 of the Act, a person cannot possess pre-cursor substances or items unless they have a lawful excuse.  A lawful excuse can be:

  • They are authorised under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA) and they possess the substances or items in accordance with that authority;
  • They had it in their possession only for the purpose of delivering to a another person who was authorised under the Misuse of Drugs Act 1981 (WA) or the Medicines and Poisons Act 2014 (WA); or
  • They are an analyst, botanist or other expert and they possess the substance or item for the purpose of analysing or examining it in that capacity.

s.14(1) Substances

A person who –without lawful excuse – possesses substances that are pre-cursor substances commits a crime.  These substances are substances which can be used in the manufacture of other prohibited drugs.

For some of these substances, possession alone is sufficient for the offence to be committed.  For some other, a person cannot possess more than a specified amount of the substance.  For example:

  •  the possession of any quantity of Bromobenzene is an offence; and
  • The possession of more than 50 ml of Acetyl Chloride is an offence.

The substances which are deemed to be pre-cursor substances are listed in Division one of Schedule 3 and Division 1 of Schedule 4 of the Misuse of Drugs Regulations 1982 (WA).

This crime can be heard summarily in the Magistrates Court or on indictment in the District Court.

s.14(2) Pre-cursor Items

Pre-cursor items are items which can be used to manufacture prohibited drugs.  These items are listed in Division 2 of Schedule 3 and Division 2 of Schedule 4 of the Misuse of Drugs Regulations 1982 (WA).  They include items such as pill presses, encapsulators and rotary evaporators.

A person who possesses a pre-cursor item without a lawful excuse commits a simple offence which is heard summarily in the Magistrates Court.

PENALTIES FOR DRUG RELATED OFENCES

The table below sets out the maximum penalties for drug related offences. 

For offences marked with a “*”, mandatory sentencing applies.  These are offences where drugs are supplied to children under the age of 18 or where the commission of the offence endangers the life, health or safety of a child under 16.  Refer to the heading “mandatory sentencing where children involved”.

SectionOffenceTried SummarilyTried on Indictment
6(2)Possess or use a prohibited drugFine – $2,000.00 and/ or Imprisonment for 2 yearsNot applicable
s.7(2)Possess or cultivate a prohibited plantFine – $2,000.00 and/ or Imprisonment for 2 yearsNot applicable
s.6(1)*Possess prohibited drug with intent to sell or supply or sell, supply or offer to sell/ supply a prohibited drug or manufacture or prepare a prohibited drugFine – $5,000.00 and/ or Imprisonment for 4 years.  Fine – $100,000.00 and/ or Imprisonment for 25 years   If Cannabis (other than cannabis resin or other derivative) Fine – $20,000.00 and/ or Imprisonment for 10 years
s.7(1)*Possess/ cultivate prohibited plant with intent to sell or supply or sell/ supply or offer to sell/ supply a prohibited plantFine – $5,000.00 and/ or Imprisonment for 4 yearsFine – $100,000.00 and/ or Imprisonment for 25 years   If Cannabis (other than cannabis resin or other derivative)   Fine – $20,000.00 and/ or Imprisonment for 10 years
s.33(1)Attempting to commit an offence listed aboveRefer to the penalty for the offence which the attempt relates toRefer to the penalty for the offence which the attempt relates to
s.33(2)(a)Conspiring to commit an offence under s.6(1) or s.7(1)Not applicableFine – $75,000.00 And/ or Imprisonment for 20 years
s.33(2)(b)Conspiring to commit any other offence other than under s.6(1) or s.7(1)Refer to the penalty for the offence which the conspiracy relates toRefer to the penalty for the offence which the conspiracy relates to
s.33(3)Incite another person to commit an offence or become an accessory after the fact to an offenceHalf of the fine and/ or imprisonment which relates to the actual offenceHalf of the fine and/ or imprisonment which relates to the actual offence
s.7A(1)Sell/ supply or Offer to sell/ supply any thing that will be used to cultivate a prohibited plant hydroponicallyFine – $2,000.00 and/ or Imprisonment for 2 yearsFine – $20,000.00 and/ or Imprisonment for 5 years
s.5Offences concerned with prohibited drugs and prohibited plants in relation to premises except s.5(1)(e)   s.5(1)(e) Being  found in premises being used for smoking a prohibited drug or prohibited plant other than cannabis  Fine – $3,000.00 And/ or Imprisonment for 3 years.     Fine – $2,000.00 And/ or Imprisonment for 2 yearsNot applicable         Not applicable
s.14*s.14(1) Possessing pre-cursor substances       s.14(2) Possessing pre-cursor itemsFine – $12,000.00 and/ or Imprisonment for 3 years   Fine – $12,000.00 and/ or Imprisonment for 3 yearsFine – $20,000.00 And/ or Imprisonment for 5 years   Not applicable  
s.25(2)Without reasonable excuse failing to give information or giving information which is false or misleadingFine – $3,000.00 and/ or Imprisonment for 3 yearsNot applicable

 

Mandatory Sentencing Where Children Involved

Sell or Supply Prohibited Drug or Plant

If someone is convicted, as an adult at the time of the offence, of an offence of:

  • Possess “prohibited drug” with intent to supply or sell; or
  • Possess “prohibited plant” with intent to sell or supply; and

the intent was to sell or supply the prohibited drug or plant to a child who was under 18:

  • For a first offence, the person must be sentenced to suspended imprisonment, conditional imprisonment or imprisonment; or
  • For a second or subsequent offence, the person must be imprisoned for at least 6 months.

Manufacture Prohibited Drug/ Cultivate Prohibited Plant/ Possess Precursor Materials

If someone, as an adult at the time of the offence, is convicted of an offence of:

  • Manufacturing a “prohibited drug”; or
  • Cultivating a “prohibited plant” with intent to sell or supply; or
  • Possessing precursor materials; and

the commission of the offence endangered the life, health or safety of a child under the age of 16:

  • For a first offence, the person must be sentenced to suspended imprisonment, conditional imprisonment or imprisonment; or
  • For a second or subsequent offence, the person must be imprisoned for at least 6 months.

If the commission of the offence caused bodily harm to a child under the age of 16:

  • For any offence the person must be sentenced to imprisonment of at least 12 months.
Call Now ButtonCall
%d bloggers like this: