Drug Offences including extracts from the DMTA + Crimes Act PDF

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Drug Offences including extracts from the DMTA + Crimes Act. Covers material from the textbook and the DMTA...

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Drug Offences There are two legislative schemes that apply to prohibit the possession and use of drugs in NSW. The first is the DMTA. The second is Pt 9.1 of the Criminal Code (Cth)(‘the Code’).

State Legislation: Drug schedule of the Drug Misuse and Trafficking Act 1985 (‘DMTA’)

Admixture provision When considering amounts of a specified drug for the purpose of provisions of the DMTA it should be noted that the quantities referred to are not the actual weight of the drug in its pure from. Thus, the weight of the drug is in effect the weight of the substance as found by police. Relevant case: Where the drug (LSD) was found impregnated into cardboard that was consumed by the user, the amount of the drug included the weight of the cardboard: Finch v R (2016) 259 A Crim R 407. Relevant section: s 4 of the DMTA.

Note: This is in contrast with the Code offences where the amounts referred to in the Code relate to the pure amount of the drug since the Code does not contain an admixture provision.

Traffickable quantity The effect of section 29 is that where a person has in his or her possession an amount of the drug equal to, or greater than, the amount specified in Column 1 of the above Table, the possession is deemed to be for the purpose of supply (defined in s 3 DMTA). Section 29 does not create an offence, but is an evidentiary provision that deems the accused to be in possession of drugs for the purpose of supply unless the accuses proves that he or she has the drug for the purpose other than supply. Therefore, the prosecution has to prove beyond reasonable doubt that the accused was in possession of at least a traffickable quantity of the drug but then, to avoid a conviction the accused has to prove on the balance of probabilities that he or she had some purpose for the possession of drugs other than to supply it. Relevant cases: R v Carey (1990) 20 NSWLR 292. (7.9 of the textbook); Alliston v R (2011) 217 A Crim R 323. Relevant legislation: s 3 (definitions) and s 29 of the DMTA

Small Quantity This amount is an indictable offence which can be dealt with summarily unless the prosecution or the accused elects to have the matter dealt with on indictment. Relevant legislation: s 30 of the DMTA

Indictable quantity This amount constitutes an indictable offence which can be dealt with summarily unless either the prosecution or the accused elects that the matter be dealt with on indictment. If this election is made by either party, the matter will be dealt with in the District Court as an indictable offence is liable for a much higher penalty. Relevant legislation: s 31 of the DMTA

Commercial Quantity There are a number of offences in the DMTA that relate to commercial quantities of a prohibited drug or prohibited plant. See relevant sections below: Relevant legislation: s 25(2), s 33 (penalty for offence)

Large Commercial Quantity The specification in a charge that the supply involved a large commercial quantity is an aggravating factor applying on sentence and not a separate offence. There is a rule of practice, that, where the Crown alleges that the offence involves a large commercial quantity, that fact should be alleged in the charge and it is matter that should go before the jury. Relevant case: R v Lee (1994) 76 A Crim R 271 – held that a failure to follow the rule will not necessarily result in the court only sentencing for a commercial quantity. Relevant legislation: s 33(a) of the DMTA (outlined above).

Discrete Dosage Unit (DDU) An example of a DDU is where the drug has been impregnated into cardboard squares so that one square will be one discrete dose. Relevant legislation: s 3 (definition)

IMPORTANT DEFINITIONS 1. Take part in – defined under s 6 of the DMTA

Relevant cases:  R v Thomas (1993) 67 A Crim R 308 – A person who manufactures something with the intention of using it in the manufacture of a prohibited drug has taken a step in the manufacture of the drug even through the manufacture of the drug does not take place because it has been interrupted by police.  R v BD (2001) 122 A Crim R 28; R v Spicer (2003) A Crim R 206 – acts that are preparatory to the manufacture are not covered under s 6.  R v McCoy (2001) 51 NSWLR 792 – A person who takes part in the attempt to manufacture of a prohibited drug using substances that could not produce the drug was not taking part in the manufacture of a prohibited drug. 2. Supply – defined under s 3 of the DMTA (see above) Supply can include selling, giving away, or agreeing to supply. Relevant cases: R v Carey - supply does not include temporary possession Relevant legislation: s 25 (supply of prohibited drugs), s 25A (offence of supplying prohibited drugs on an ongoing basis), s 29 (Deemed supply)  s 25  s 25A  s 29 3. Cultivate – defined in s 3 of the DMTA

Relevant legislation: s 23(1)(a) and s 23(1A) of the DMTA

Relevant cases:   

R v Giorgi (1982) 7 A Crim R 305 – participating in the harvesting of cannabis plants is sufficient to amount to cultivation. R v Kirkwood [1982] Qd R 158 – watering of plants in order to promote their growth amounts to cultivation R v CWW (1993) 32 NSWLR 348 – For a person to be guilty of the offence of cultivating a commercial quantity of plants, the person must intend to cultivate a quantity of plants that amounts to the commercial quantity.

4. Manufacture – defined in s 3 of the DMTA

Relevant legislation: s 24 and 24A of the DMTA  s 24  s 24A Relevant cases:  R v Buic [2016] NSWCCA 297 – Manufacture includes the process of extracting or refining the prohibited drug, which covers extracting the drug from blotting paper into which it had been impregnated.  Siafakas v R [2016] NSWCCA 100 – The mental element of manufacture is that the accused knew that he or she was manufacturing what the accused believed to be a prohibited drug, even though unaware what drug was being manufactured or whether the accused believed he or she was manufacturing a specific prohibited drug, even though unaware that the drug was a prohibited drug under the DMTA. 5. Possession The classic definition of possession is that given by Lord Diplock in Director of Public Prosecutions v Brooks [1974] 2 WLR 899 at 902.

Relevant legislation: s 7 and s 10 of the DMTA

Note: s 7 of the DMTA extends the concept of possession to include a person who has a drug in the custody of another person – see R v Dib (1991) 52 A Crim R 64. Relevant cases:  R v Lau (1998) 105 A Crim R 167 – It is sufficient if the prosecution proves that the accused had actual knowledge of a prohibited drug in his or her possession, or a belief that there was a significant or real chance there was.  R v Dunn (1986) 32 A Crim R 203 – It is not necessary that the accused knew that it was a particular prohibited drug or a prohibited drug of the kind charged, provided he or she believed it was a prohibited drug.  He Kaw The (1985) 157 CLR 523 – possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody.  Filipet (1984) 13 A Crim R 335 – finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred.

Other Relevant Legislation:  

Drug Court Act 1998 (NSW) – 7.35 of textbook The Confiscation of Proceeds of Crime Act 1989 (NSW) – 7.41 of textbook...