DRUG OFFENCES QLD

The Law:

♦ Section 10 of the Drugs Misuse Act (Qld).

♦  The Drugs Misuse Regulation (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant had in his or her possession: –

(a) anything for use in connection with the commission of a drug offence; or

(b) anything that they had used in connection with a drug offence.

Or

The defendant: –

(1) unlawfully (this means not authorised, justified or excused by the law)

(2) had in his or her possession anything (not being a hypodermic syringe or needle): 

(a) for use in connection with the administration, consumption or smoking of a dangerous drug; or

(b) that the person has used in connection with the administration, consumption or smoking of a dangerous drug.

 Or 

The defendant: –

(a) had in his or her possession a hypodermic syringe or needle; 

(b) failed to use all reasonable care and take all reasonable precautions in respect of the hypodermic syringe or needle so as to avoid danger to the life, safety or health of another.

Or

The defendant: –

(1) had in his or her possession a hypodermic syringe or needle; 

(2) that had been used in connection with the administration of a dangerous drug; 

(3) failed to dispose of such hypodermic syringe or needle in accordance with the procedures prescribed by regulation.

Or  

The defendant: –

(1) supplied (please see definition of supply below); 

(2) a hypodermic syringe or needle to another person; 

(3) for use in connection with the administration of a dangerous drug.

Please note this does not apply to a medical practitioner, pharmacist or person or member of a class of persons authorised so to do by the Minister administering the Health Act 1937.

Possession

This means physical control or custody of the item with the knowledge that they had the physical control or custody of it.

Supply

“Supply” has a broad definition under the Drugs Misuse Act (Qld) and is defined as:

(a) give, distribute, sell, administer, transport or supply; or

(b) offering to give, distribute, sell, administer, transport or supply; or

(c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of giving, distributing, selling, administering, transporting or supplying.

Maximum Penalty:

♦ 15 years imprisonment for the offence of possessing anything for use or that had been used in connection with the commission of a drug offence.

♦  2 years imprisonment for the remaining offences.

The Law: Section 11 of the Drugs Misuse Act (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) was the occupier of a place; or

(2) was concerned in the management or control of a place;

and

(3) permitted the place to be used for the commission of a drug offence.

Maximum Penalty: 15 years imprisonment.

The Law: Section 10B of the Drugs Misuse Act (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant: –

• Possessed;

• A prohibited combination of items;

• Unlawfully (this means they were not authorised, justified or excused by the law to possess the prohibited combination of items)

Possession

This means physical control or custody of the item with the knowledge that they had the physical control or custody of it.

What is a prohibited combination of items?

 A combination consisting of substances that are or contain: –

(a) pseudoephedrine or its salts; and

(b) hypophosphorous acid; and

(c) iodine.

Or

A combination consisting of substances that are or contain: –

(a) pseudoephedrine or its salts; and

(b) hydriodic acid; and

(c) phosphorous (red or white).

Or

A combination consisting of substances that are or contain: –

(a) pseudoephedrine or its salts; and

(b) lithium metal; and

(c) ammonia gas.

Please Note it does not matter if the items are at different places (the three items do not need to be located together).

The Law:

♦ Section 9 of the Drugs Misuse Act (Qld).

♦  Section 129(1)(c) of the Drugs Misuse Act (Qld).

♦  The Drugs Misuse Regulation (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) unlawfully (i.e. the defendant was not authorised, justified or excused by the law);

(2) had possession;

(3) of a “dangerous drug”.

What is possession?

The prosecution must prove that the defendant had physical control or custody of the dangerous drug with the knowledge that they had the physical control or custody of it. The prosecution does not need to prove that the defendant had knowledge that the item was a dangerous drug- they only need to prove that the defendant had physical control or custody of the item (i.e. the dangerous drug).

What happens if the dangerous drug is located in or at your home?

Section 129(1)(c) of the Drugs Misuse Act (Qld) provides a presumption that you are deemed to be in possession of a dangerous drug if it is located in or on a place where you are the occupier or you are concerned in the management or control of the place. However, this presumption can be rebutted if you can show that you neither knew nor had reason to suspect that the drug was in or on the place.

What is a “dangerous drug”?

Dangerous drugs are identified in schedules 1, 2 and 5 of the Drugs Misuse Regulation (Qld).

Schedule 1 drugs include, but are not limited to:

♦ Amphetamine.

♦ Cocaine.

♦ Heroin.

♦ Lysergide.

♦ Methylamphetamine.

♦ 3,4-Methylenedioxymethamphetamine (MDMA).

♦ Paramethoxyamphetamine (PMA).

♦ Paramethoxymethamphetamine (PMMA).

♦ Phencyclidine.

Schedule 2 drugs include, but are not limited to:

♦ Buprenorphine.

♦ Cannabinoids other than tetrahydrocannibinols.

♦ Cannabis.

♦ Coca leaf.

♦ Delorazepam.

♦ Desomorphine.

♦ Diazepam.

♦ Ephedrine.

♦ Ethchlorvynol 

♦ Fentanyl.

♦ Flunitrazepam.

♦ Gamma hydroxybutyric acid (GHB).

♦ Growth Hormone (hGH). 

♦ Ketamine.

♦ Lysergic acid. 

♦ Methadone.

♦ Morphine. 

♦ Opium. 

♦ Oxycodone. 

Schedule 5 drugs include, but are not limited to:

♦ Alprazolam. 

♦ Bromazepam. 

♦ Chlordiazepoxide.

♦ Delorazepam.

♦ Diazepam.

Maximum Penalty: 

The maximum penalty ranges from 15 years imprisonment to 25 years imprisonment.

The maximum penalty depends on: –

♦ The type of drug (whether it is a Schedule 1, 2 or 5 drug).

♦ The pure weight of the drug (whether the weight exceeds Schedule 3 or 4 quantities).

The Law:

♦ Section 9A of the Drugs Misuse Act (Qld).

♦ The Drugs Misuse Regulation (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant: 

(1) possessed;

(2) a relevant substance or thing; 

(3) The possession of the relevant substance or thing was unlawful (i.e. it was not authorised, justified or excused by the law).

What is a “relevant substance”?

The Drugs Misuse Act (Qld) defines a relevant substance as:

(a) a substance that is, or contains, a controlled substance and the gross weight of the relevant substance is, or exceeds, the gross weight specified in schedule 8A of the Drugs Misuse Regulation (Qld) for that relevant substance; or

(b) substances that together are, or contain, a controlled substance and the total gross weight of the relevant substances is, or exceeds, the total of the gross weights specified in schedule 8A of the Drugs Misuse Regulation (Qld) for that relevant substance.

What is a “relevant thing”?

 A “relevant thing” is any of the following:

(a) condenser.

(b) distillation head.

(c) heating mantle.

(d) manual or mechanical pill press, including a pill press under

(e) repair, a modification of a pill press and parts for a pill press.

(f) reaction vessel, including a reaction vessel under repair or a

(g) modification of a reaction vessel.

(h) rotary evaporator.

(i) splash head, including a splash head under repair or parts for a splash head

What is a “controlled substance”?

The Drugs Misuse Act (Qld) defines a controlled substance as:

(a) a substance specified in Schedule 6 of the Drugs Misuse Regulation (Qld); or

(b) a salt, derivative or stereo-isomer of a substance specified in Schedule 6 of the Drugs Misuse Regulation (Qld).

(c) a salt of a derivative or stereo-isomer of a substance specified in Schedule 6 of the Drugs Misuse Regulation (Qld).

Maximum Penalty: 15 years imprisonment.

The Law: Section 10A of the Drugs Misuse Act (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) had in their possession; 

(2) any property (other than a dangerous drug, hypodermic syringe or needle) reasonably suspected of:

(a) having been acquired for the purpose of committing a drug offence; or

(b) having been used in connection with the commission of a drug offence; or

(c) having been furnished or intended to be furnished for

(d) the purpose of committing a drug offence; or

(e) being the proceeds of a drug offence; or

(f) having been acquired with the proceeds of a drug offence;or

(g) being property into which the proceeds of a drug offence have, in some other manner, been converted.

(3) The defendant does not give an account satisfactory to the court of how they lawfully came by or had such property in their possession

Possession

The Drugs Misuse Act (Qld) specifically states that it is sufficient to show that the defendant has, either alone or jointly with some other person, aided in concealing the property or disposing of it.

Maximum Penalty: 2 years imprisonment.

The Law:

♦ Section 8 of the Drugs Misuse Act (Qld).

♦  The Drugs Misuse Regulation (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

(1) the defendant produced; 

(2) a dangerous drug; 

(3) the production of the dangerous drug was unlawful (i.e. it was not authorised, justified or excused by the law).

What does “produce” mean?

Produce is defined in the Drugs Misuse Act (Qld) to mean:

(a) prepare, manufacture, cultivate, package or produce; or

(b) offering to prepare, manufacture, cultivate, package or produce; or

(c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of preparing, manufacturing, cultivating, packaging or producing.

There does not always need to be an end product of a dangerous drug before an offence of producing a dangerous drug is proved. For example, in some situations where persons have possession of chemicals and the glassware required to produce amphetamine this may be sufficient to support a charge of production.

What is a “dangerous drug”?

Dangerous drugs are identified in schedules 1, 2 and 5 of the Drugs Misuse Regulation (Qld).

Schedule 1 drugs include, but are not limited to:

♦ Amphetamine.

♦ Cocaine.

♦ Heroin.

♦ Lysergide.

♦ Methylamphetamine.

♦ 3,4-Methylenedioxymethamphetamine (MDMA).

♦ Paramethoxyamphetamine (PMA).

♦ Paramethoxymethamphetamine (PMMA).

♦ Phencyclidine.

Schedule 2 Drugs include, but are not limited to:

♦ Buprenorphine.

♦ Cannabinoids other than tetrahydrocannibinols.

♦ Cannabis.

♦ Coca leaf.

♦ Delorazepam.

♦ Desomorphine.

♦ Diazepam.

♦ Ephedrine.

♦ Ethchlorvynol 

♦ Fentanyl.

♦ Flunitrazepam.

♦ Gamma hydroxybutyric acid (GHB).

♦ Growth Hormone (hGH). 

♦ Ketamine.

♦ Lysergic acid. 

♦ Methadone.

♦ Morphine. 

♦ Opium. 

♦ Oxycodone. 

Schedule 5 Drugs include, but are not limited to:

♦ Alprazolam. 

♦ Bromazepam. 

♦ Chlordiazepoxide.

♦ Delorazepam.

♦ Diazepam.

Maximum Penalty: This ranges from between 15 years and 25 years imprisonment depending on the drug and the quantity.

The Law: Section 7 of the Drugs Misuse Act (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

(1) The defendant received (the prosecution only need to show that the defendant either alone or jointly with some other person, aided in concealing the property or disposing of it) or possesses property.

(2) The property was obtained directly or indirectly as a consequence of trafficking in a dangerous drug or the supply of a dangerous drug.

(3) The defendant knew or believed the property to have been obtained directly or indirectly as a consequence of trafficking in a dangerous drug or the supply of a dangerous drug.

Maximum Penalty: 20 years imprisonment.

The Law:

♦ Section 6 of the Drugs Misuse Act (Qld).

♦ The Drugs Misuse Regulation (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) unlawfully (i.e. it was not authorised, justified or excused by the law);

(2) supplied;

(3) a dangerous drug to another person.

What is a supply?

“Supply” has a broad definition under the Drugs Misuse Act (Qld) and is defined as:

(a) give, distribute, sell, administer, transport or supply; or

(b) offering to give, distribute, sell, administer, transport or supply; or

(c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of giving, distributing, selling, administering, transporting or supplying.

There does not always need to be an exchange of drugs for money in order for there to be a supply. If a person offers to supply or arranges to supply a dangerous drug, this can be sufficient to prove the offence of supplying a dangerous drug. 

What is a “dangerous drug”?

Dangerous drugs are identified in schedules 1, 2 and 5 of the Drugs Misuse Regulation (Qld).

Schedule 1 drugs include, but are not limited to:

♦ Amphetamine.

♦ Cocaine.

♦ Heroin.

♦ Lysergide.

♦ Methylamphetamine.

♦ 3,4-Methylenedioxymethamphetamine (MDMA).

♦ Paramethoxyamphetamine (PMA).

♦ Paramethoxymethamphetamine (PMMA).

♦ Phencyclidine.

Schedule 2 drugs include, but are not limited to:

♦ Buprenorphine.

♦ Cannabinoids other than tetrahydrocannibinols.

♦ Cannabis.

♦ Coca leaf.

♦ Delorazepam.

♦ Desomorphine.

♦ Diazepam.

♦ Ephedrine.

♦ Ethchlorvynol 

♦ Fentanyl.

♦ Flunitrazepam.

♦ Gamma hydroxybutyric acid (GHB).

♦ Growth Hormone (hGH). 

♦ Ketamine.

♦ Lysergic acid. 

♦ Methadone.

♦ Morphine. 

♦ Opium. 

♦ Oxycodone. 

Schedule 5 drugs include, but are not limited to:

♦ Alprazolam. 

♦ Bromazepam. 

♦ Chlordiazepoxide.

♦ Delorazepam.

♦ Diazepam.

Maximum Penalty:

♦  Life Imprisonment if it is a Schedule 1 drug under the Drugs Misuse Regulation (Qld) and the offence involved the supply of a dangerous drug to a person under 16 years of age.

♦  25 years imprisonment if: 

(1) it is a Schedule 1 drug under the Drugs Misuse Regulation (Qld) and the offence involved the supply of a dangerous drug to: –

(a) a minor who is 16 years of age or more.

(b) an intellectually impaired person.

(c) a person within an educational institution

(d) a person in a correctional centre.

(e) a person who did not know they were being supplied with the drug.

or 

(2) If it is a Schedule 2 drug under the Drugs Misuse Regulation (Qld) and the offence involved the supply of a dangerous drug to a person under 16 years of age.

♦ 20 years imprisonment if: – 

(1) If it is a Schedule 1 drug under the Drugs Misuse Regulation (Qld) and the supply was not to:

(a) a person under 16 years of age.

(b) a minor who was 16 years of age or more.

(c) an intellectually impaired person.

(d) a person within an educational institution

(e) a person in a correctional centre.

(f) a person who did not know they were being supplied with the drug.

Or

If it is a Schedule 2 drug under the Drugs Misuse Regulation (Qld) and the offence involved the supply of a dangerous drug to: –

(a) a minor who is 16 years of age or more.

(b) an intellectually impaired person.

(c) a person within an educational institution

(d) a person in a correctional centre.

(e) a person who did not know they were being supplied with the drug.

♦ 15 years imprisonment if it is a Schedule 2 drug under the Drugs Misuse Regulation (Qld) and the supply was not to:

(a) a person under 16 years of age.

(b) a minor who was 16 years of age or more.

(c) an intellectually impaired person.

(d) a person within an educational institution

(e) a person in a correctional centre.

(f) a person who did not know they were being supplied with the drug.

The Law:

♦ Section 5 of the Drugs Misuse Act (Qld).

♦  The Drugs Misuse Regulation (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant: – 

(1) carried on a business of; 

(2) unlawfully (i.e. it was not authorised, justified or excused by the law); 

(3) trafficking; 

(4) in a dangerous drug.

What does it mean to carry on a business?

There is no specific definition of what will constitute the “carrying on of a business” or a set of specific things that need to be present before someone will be deemed to have been carrying on a business.

For there to be a carrying on of a business, there generally needs to be more than one transaction- there often needs to be evidence of a series of transactions.

Indicia of the “carrying on of a business” includes: – 

• Having customers.
• Advertising the drug/s (e.g. via the Internet/text messages or other messaging services).
• Sales of drugs.
• Arranging for the receipt and/or delivery of drugs.
• Negotiating the purchase of drugs.
• Communicating with potential buyers.

There does not need to be an exchange of money for there to be a business.

What is trafficking?

Trafficking has been identified as conveying notions of trading in or dealing with. Trafficking has been held to mean knowingly engaging in the movement of dangerous drugs from the supplier to the end user.

What is a “dangerous drug”?

Dangerous drugs are identified in schedules 1, 2 and 5 of the Drugs Misuse Regulation (Qld).

Schedule 1 drugs include, but are not limited to:

♦ Amphetamine.

♦ Cocaine.

♦ Heroin.

♦ Lysergide.

♦ Methylamphetamine.

♦ 3,4-Methylenedioxymethamphetamine (MDMA).

♦ Paramethoxyamphetamine (PMA).

♦ Paramethoxymethamphetamine (PMMA).

♦ Phencyclidine.

Schedule 2 drugs include, but are not limited to:

♦ Buprenorphine.

♦ Cannabinoids other than tetrahydrocannibinols.

♦ Cannabis.

♦ Coca leaf.

♦ Delorazepam.

♦ Desomorphine.

♦ Diazepam.

♦ Ephedrine.

♦ Ethchlorvynol 

♦ Fentanyl.

♦ Flunitrazepam.

♦ Gamma hydroxybutyric acid (GHB).

♦ Growth Hormone (hGH). 

♦ Ketamine.

♦ Lysergic acid. 

♦ Methadone.

♦ Morphine. 

♦ Opium. 

♦ Oxycodone. 

Schedule 5 drugs include, but are not limited to:

♦ Alprazolam. 

♦ Bromazepam. 

♦ Chlordiazepoxide.

♦ Delorazepam.

♦ Diazepam.

Maximum Penalty:

♦ Life imprisonment. 

PLEASE NOTE that if the term of imprisonment ordered by the Court is not ordered to be served by way of an Intensive Correction Order or is not ordered to be wholly or partly suspended, then the Court must make an order that the defendant must not be released from prison until they have served a minimum of 80% of the term of imprisonment.