Drug Charges – Possessing Dangerous Drugs

Our experienced criminal law solicitors have prepared a brief overview of the law relating to possessing dangerous drugs.  If you or someone you care about is facing a drug allegation, you need specific advice and should contact Gatenby Criminal Lawyers on   55800120 for advice. 

For more information on other drug charges, visit our DRUG OFFENCES HOMEPAGE.

Possessing Dangerous Drugs – The Law

Section 9 of the Drugs Missuse Act 1986 creates the offence of Possessing a Dangerous Drug.  The section provides:

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

Elements of the offence

To be found guilty of the offence of possessing dangerous drugs the prosecution is required to prove, beyond a reasonable doubt, the following elements:

  1. That the conduct was unlawful (that is not excused or justified by law);
  2. That the person had possession
  3. Dangerous Drug

Possession

The prosecution must prove that the accused had both “knowledge” and an ability to “control” the dangerous drug. A person can not be found guilty of a unlawful possession of a thing or substance of which they are unaware.

Evidentiary Provisions

Section 129(1)(c) of the Drugs Misuse Act 1986 provides

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 that the drug was then 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 covers the situation where the drugs are found in a place and possession can not be under a particular person’s direct control.  The occupier of a home is deemed to be in possession of the drugs unless the can demonstrate that they did not know have knowledge or a reason to suspect that the drugs would be at the place.

Dangerous Drugs

Dangerous Drugs are defined in schedule 1 and schedule 2 of the Drugs Misuse Regulation 1987.  The relevant quantities for particular drugs is defined in schedules 3 and or of the regulation.

Schedule 1 contains the more serious drugs including

  • Amphetamine
  • Cocaine
  • Heroine
  • Methylamphetamine
  • 3,4-Methylenedioxymethamphetamine (MDMA)

Schedule 2 contains the list serious drugs including

  • Cannabis
  • Codeine
  • Diazepam
  • Methadone
  • Morphine
  • Opium
  • Temazepam

Maximum Penalty

  1. If the dangerous drug is a thing specified in the Drugs Misuse Regulations 1987,  schedule 1 and quantity of the drug is less than the schedule 4 quantity – 25 years 
  2. If the dangerous drug is a thing specified in the Drugs Misuse Regulations 1987,  schedule 1 and quantity of the drug is or exceeds the schedule 4 quantity, but less than the schedule 4 quantity and the person satisfies the Court that they are drug addicted – 20 years
  3. If the dangerous drug is a thing specified in the Drugs Misuse Regulations 1987,  schedule 1 and quantity of the drug is or exceeds the schedule 3 quantity, but less than the schedule 4 quantity and the person can not satisfy the Court that they are drug addicted – 25 years
  4. If the dangerous drug is a thing specified in the Drugs Misuse Regulations 1987,  schedule 2 and quantity of the drug is or exceeds the schedule 3 quantity – 20 years
  5. In any other case – 15 years

Jurisdiction – Where will the matter be heard?

The offence of possessing a dangerous drug is an indictable offence.  Pursuant to section 14(2) of the Drugs Misuse Act 1986, if the prosecution are alleging that the possession of the dangerous drug was for a commercial purpose the matter  will be heard in the Supreme Court of Queensland.

If the prosecution are not alleging that the possession was for a commercial purpose, then the prosecution can elect that have the matter finalised in the Magistrates Court.

Conviction – Does a conviction have to be recorded?

The sentencing Court has a discretion whether or not to record a conviction against you for the offence of possessing a dangerous drug.  Generally a conviction would not be recorded for this type of offence, if it was a first offence and the possession was not for a commercial purpose.  The relevant factors are set out in section 12 of the Penalties and Sentences Act 1992. If you are concerned about a conviction being recorded you should seek legal advice.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

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