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Drug Offences

Drug Offences are among the most serious offences in the eyes of the Criminal Law Courts. However, the penalties associated with Drug Offences vary greatly, and under the right circumstances, and with good legal representation, there is great scope for the Courts to be lenient.

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    Cocaine and Ecstasy Offences

    Cocaine and Ecstasy offences are taken particularly seriously by the police and the courts. Cocaine is a highly addictive and damaging drug and there are severe penalties for its use, possession, supply and manufacture. Ecstasy, or MDMA (methylene-dioxymethamphetamine), is a stimulant drug often associated with festivals and parties. It is a criminal offence to possess, use or distribute both cocaine or ecstasy and these offences are taken very seriously by the police and the courts, which often issue harsh penalties.

    Penalties for cocaine and ecstasy offences

    In NSW, the greater the quantity of the prohibited drug in question, the harsher the penalty. The intended use of the drug is also a factor in determining guilt and penalties.

    Defences for Cocaine and Ecstasy related Offences

    If you are charged with an offence relating to cocaine or ecstasy (possession, use, supply, manufacture), you may have several legal options, depending on the amount of ecstasy in question. If the amount is large, it may be in your interests to plead guilty, as an acknowledgment of the seriousness of the offence may lead the court to consider your case with leniency. However, you may also be able to offer certain legal defences:

    • Duress: You may have been forced to use, carry, supply or manufacture cocaine or ecstasy by another person, through threats, violence or other coercion
    • Necessity: You may also have believed that to become involved with cocaine or ecstasy would have prevented another offence, or a worse offence, from happening
    • Honest and reasonable mistake: You may also have been genuinely unaware that the substance in question was cocaine, ecstasy, or even a prohibited drug.
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    Cannabis

    There are five categories of cannabis listed under section 1 of the Drug Misuse and Traffic Act 1985: cannabis leaf, cannabis plant (indoor / hydroponic), cannabis plant (other), cannabis oil and cannabis resin.

    You will be charged with possession of cannabis if the quantity you are carrying is below the trafficable quantity. If it is above this, you will be charged with supply. The difference between possession and supply is that if you are carrying a large quantity of cannabis, the law presumes you are carrying it with the intention of giving it to others, which the law regards as a more serious offence than mere possession for personal use. In this case, once the prosecution proves beyond reasonable doubt that you knowingly had in your possession an indictable quantity of cannabis, you must prove on the balance of probabilities that you in fact did not supply or intend to supply the drugs to anyone else, in order to beat the supply charge. As long as the prosecution has charged you with cannabis possession as a “backup”, you will still be liable for the offence of cannabis possession.

    The table below outlines the quantities of each form of cannabis relevant to each offence category.

    Trafficable quantity

    Small quantity Indictable quantity Commercial quantity

    Large commercial quantity

    Cannabis leaf

    300g

    30g 1000g 25kg

    100kg

    Cannabis oil

    5g

    2g 10g 500g

    2kg

    Cannabis plant (indoor)

    5 50 50  200
    Cannabis plant (other)

    5 50

    250

     1000

    Cannabis resin

    30g 5g 90g 2.5kg

    10kg

    Courts and penalties – less than small quantity

    Where the quantity is less than the small quantity, the matter may be dealt with in the Local Court, where the maximum penalty is 2 years’ prison and/or 50 penalty units ($5,500), unless the prosecution elects the matter to be heard in the District Court (otherwise known as a “Table 2 offence”).

    Courts and penalties – small quantity

    Where the quantity is more than the small quantity but less than the indictable quantity, the matter will still be dealt with in the Local Court, where the maximum penalty is 2 years’ prison and/or 100 penalty units ($11,000), unless either you or the prosecution elects the matter to be heard in the District Court (otherwise known as a “Table 1 offence”).

    Courts and penalties – indictable quantity

    Where the quantity is more than the indictable quantity but less than the commercial quantity, the matter must be heard in the District Court, unless the charged offence relates to cannabis plant or cannabis leaf, which are treated as a Table 1 offence. The maximum penalty in the District Court is 15 years’ jail and/or 2000 penalty units ($220,000).

    Courts and penalties – commercial quantity

    Where the quantity is more than the commercial quantity but less than the large commercial quantity, the matter must be heard in the District Court, where the maximum penalty is 3,500 penalty units ($385,000) and/or 20 years’ prison, or 3,500 penalty units and/or 15 years’ jail if the offence relates to cannabis leaf or cannabis plant.

    Courts and penalties – large commercial quantity

    Where the quantity is more than the large commercial quantity, the matter must be heard in the District Court, where the maximum penalty is 5,000 penalty units ($550,000) and/or life imprisonment, or 5,000 penalty units and/or 20 years’ prison if the offence relates to cannabis leaf or cannabis plant.

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    Use/Possession/Supply of Prohibited Drugs

    Use and Possession of a prohibited drug are the less serious of the criminal charges associated with Prohibited Drugs, however both can attract strong penalties as the law wishes to prevent the extreme harm that drugs cause. Supply of a prohibited drug is viewed very seriously however and often attracts severe penalties with the Police often seeking the maximum penalty if the amount of drug in question large.

    Penalties – Use of a Prohibited Drug

    The maximum penalties for using a prohibited drug are a fine of up to $2,200 and/or 2 years imprisonment. In many cases, particularly if the amount of the drug in question was relatively small, these penalties may not be imposed, but the offender may be placed on a good behaviour bond, given a suspended sentence or required to perform community service. Drug rehabilitation programs may also be recommended.

    Penalties – Possession of a Prohibited Drug

    As a rule, in NSW law, the greater the quantity of the drug in question, the more harsh the penalty. The other major consideration in determining guilty and sentences is the intended use of the drugs. The intention of personal use usually attracts lesser penalties than the intention to distribute. Possession of a prohibited drug carries a maximum penalty of a fine of $2,200 and/or 2 years imprisonment.

    Penalties – Prohibited Drug Supply

    • Less than a small quantity: $5,500 and/or 2 years imprisonment.
    • Less than an indictable quantity: $11,000 and/or 2 years imprisonment.
    • Less than a commercial quantity – cannabis leaf or plant, where defined as a summary offence (ie. a small amount of drug is involved): $11,000 and/or 2 years imprisonment.
    • Less than a commercial quantity – cannabis leaf or plant: $22,000 and/or 10 years imprisonment.
    • Less than a commercial quantity: $22,000 and/or 15 years imprisonment.
    • Of a commercial quantity – cannabis leaf of plant: $385,000 and/or 15 years imprisonment.
    • Of a commercial quantity: $385,000 and/or 20 years imprisonment.
    • Of a large commercial quantity – cannabis leaf or plant: $550,000 and/or 20 years imprisonment.
    • Of a large commercial quantity: $550,000 and/or life imprisonment.

    Defences

    If you have been charged with use, possession or supply of a prohibited drug, there may be some

    legal defences open to you. These include:

    • Duress: You may have been forced to use, possess or supply a prohibited drug by another person’s threats, violence or other coercion.
    • Honest and reasonable mistake: You also may not have been aware that the substance you were taking was a prohibited drug.

    In cases where more than one person has been alleged to have used, possessed or supplied the prohibited drugs, you may be able to prove that you were not one of them, but that the police made certain assumptions on the basis of circumstantial evidence.

    In some cases, it may be in your interests to plead guilty, as an acknowledgement of the charges by you may lead the court to make lenient decisions.

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    Cultivating a Prohibited Plant/Manufacturing a Prohibited Drug

    Cultivating a prohibited plant and manufacturing a prohibited drug are both serious charges. The former relates to the growing or maintaining of a prohibited plant in any place that is under your control. The latter is one of the most serious drug related charges. It applies to any person involved at any point in the manufacturing process.

    Penalties – Cultivating a Prohibited Plant

    The penalties for cultivating a prohibited plant can be very severe, as in some circumstances the charge may equate to the early stages of manufacturing prohibited drugs. The penalties can range from fines of $5,500 to between 2 and 20 years imprisonment.

    Penalties – Manufacturing a Prohibited Drug

    The penalties for being found guilty of manufacturing a prohibited drug are among the most severe for all drug charges. As in all NSW drug cases, the severity of the penalty depends on the quantity of prohibited drugs involved. The greater the quantity, the harsher the penalty.

    Penalties for manufacturing a prohibited drug can include from fines ranging between $5,500 and $550,000 and/or imprisonment for between 2 years and life.

    Defences

    If you have been charged with cultivating a prohibited plant or manufacturing a prohibited drug, you may be able to offer some legal defences. These include:

    • Duress: You may have been forced to cultivate a prohibited plant or manufacture prohibited drugs, or co-opted into the manufacturing process, by another person, through the use of violence or other threatening coercion
    • Necessity: You may also have believed that to cultivate prohibited plants or manufacture prohibited drugs may have prevented another, or worse, offence from occurring.

    In many cases, it may be in your interests to plead guilty, as an acknowledgement of the seriousness of the charges may lead the court to treat your case with leniency.

Penalties

In NSW, the larger the quantity of drug involved in an offence, the more serious the penalty. This rule is set out within the Drug Misuse and Trafficking Act 1985 (NSW). The intent of the offender is also an important consideration when determining the guilt of the accused charged with an offence.

If you are charged with an offence, the court will consider a variety of matters in order to determine your sentence. Depending on the nature of the offence, it is very rare that you will receive a maximum penalty, especially if it is a first-time offence. However maximum penalties can be used as a guide, to indicate the seriousness of the offence.

Maximum penalties for drug-related offences range from two years imprisonment and/or fines of $2,200 to life imprisonment and/or fines of up to $550,000 and forfeiture of assets. The type of drug, along with the quantity, is also an important consideration in sentencing. For example, lower penalties exist in situations where the drug in question is cannabis.

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    Possession of a prohibited drug

    $2,200 and/or 2 years imprisonment

    An offence with respect to prohibited plants: from $5,500 and/or 2 years, to $55,000 and/or 20 years.

    Manufacture and production of prohibited drug: from 50 pu (per unit) and/or 2 years, to 5000 pu and/or life imprisonment.

    Possession of precursors (ie. the basic materials) intended for use in the manufacture or production of a prohibited drug: from 100 pu and/or 2 years, to 2000 pu and/or 10 years.

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    Supply of a prohibited drug

    • Less than a small quantity: $5,500 and/or 2 years imprisonment.
    • Less than an indictable quantity: $11,000 and/or 2 years imprisonment.
    • Less than a commercial quantity – cannabis leaf or plant, where defined as a summary offence (ie. a small amount of drug is involved): $11,000 and/or 2 years imprisonment.
    • Less than a commercial quantity – cannabis leaf or plant: $22,000 and/or 10 years imprisonment.
    • Less than a commercial quantity: $22,000 and/or 15 years imprisonment.
    • Of a commercial quantity – cannabis leaf of plant: $385,000 and/or 15 years imprisonment.
    • Of a commercial quantity: $385,000 and/or 20 years imprisonment.
    • Of a large commercial quantity – cannabis leaf or plant: $550,000 and/or 20 years imprisonment.
    • Of a large commercial quantity: $550,000 and/or life imprisonment.
    • Importation of a prohibited drug
    • Of a commercial quantity: life imprisonment.
    • Of a trafficable quantity where you have a previous conviction: life imprisonment.
    • Of a trafficable quantity: $100,000 and/or 25 years imprisonment.
    • Of a trafficable quantity of cannabis: $4,000 and/or 10 years imprisonment.
    • Of a trafficable quantity but where you’re not for dealing: $2,000 and/or 2 years imprisonment.
    • Of less than a trafficable quantity: $2,000 and/or 2 years imprisonment.

     

    The quantities are grouped into categories: discrete dosage unit, small, trafficable, indictable, commercial and large commercial. The amounts of the drug that fit into each category vary from drug to drug. Generally, heroin and cocaine attract the more serious sentences. Amphetamines such as speed and ecstasy attract mid-range sentences, and cannabis low range. Large amounts of low and mid-range drugs can still, however, attract significant penalties.

    To determine what drug offence(s) you have been charged with, and the amount of drugs the police consider are involved, you can refer to either the charge sheet or the notice to appear, one of which the arresting officer will have given you.

    If you have been charged with a drug offence, there are a number of ways you can proceed. It may be possible to have your charge withdrawn or reduced by the Police by way of representations. It may be an option to defend your matter in Court, or it may be in your best interests to plead guilty.

How can Sydney Criminal Defence Lawyers help?

Our Criminal Lawyers will carefully consider your case, advise you on all your legal options, and recommend the best way forward.

Call us now on 02 8059 7121 or contact us after hours on 0420 998 650  or text 24hrs to book an appointment with one of our solicitors.

The initial consultation is free.

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