The Misuse of Drugs Act 1981 (“The Act”) makes the possession, sale, supply or manufacture of illegal drugs a criminal offence. Serious drug offences may result in a term of imprisonment. Any person convicted of a drug offence will receive a criminal record, and this can hinder their ability to get a job, apply for credit, or even apply for visas for international travel purposes.
What is a ‘Prohibited Drug’?
Section 4 of the Act specifies drugs to which the Act applies as:
- Drugs of addiction ;
- Specified drugs; and
- Drugs specified in schedule 1 of the Act.
This is quite a large list, and includes, cannabis, cocaine, methylamphetamine, heroin and many others. ‘Performance enhancing drugs’ like anabolic and androgenic steroids, also fall within the classification of a ‘prohibited drug’. If you are found to be in possession of any ‘prohibited drugs’ you will be sentenced in accordance with the Act.
What if It is the Prescription Medication?
The Act does apply to prescription medication, however, section 6(2) deems it legal to have in your possession prescription medication if it has been legitimately prescribed to you by a medical practitioner. You must be able to provide a valid medical prescription when proving you have legally obtained the drugs.
What Does It Mean to Be in ‘Possession’ of an Illegal Drug?
The term ‘to possess’ is loosely defined in section 3(1) of the Act as to include “to control or have dominion over, and to have the order or disposition of”. In Davies v Western Australia [2006] WASCA 151, the court suggested that the term ‘control’ referred to the position where someone has physical custody of the prohibited drug, however, the concept of ‘control’ extends much wider than this.
Control of a prohibited drug can include ‘de facto possession and also ‘constructive possession’ whereby the former is used to describe actual possession, and the latter is when the connection between the person and the prohibited drug is more “ambiguous and uncertain” – He Kaw Teh v R (1985) 157 CLR 523. It is still possible that a person is in ‘possession’ of a prohibited drug even if they do not know (or claim to not know) what it was. People cannot be said to be in possession of things of which they are simply unaware, however, the Court will find it unreasonable to infer that someone could not know of something like the contents of their bag.
The concept of ‘dominion’ or ‘control’ is much broader than the concept of actual possession. Usually, the prosecution will need to prove beyond a reasonable doubt that a specific intention to exercise control over a prohibited drug before a verdict of guilty can be found. Because of this, there is generally no difficulty in charging two or more people with joint possession of a prohibited drug, given that the available evidence establishes joint possession.
Case Example of Being ‘Charged with Possession’
In Davies v Western Australia [2005] WASCA 47, three people were charged with possession of the same quantity of cannabis with intent to sell or supply. One of them pleaded guilty, whilst the other two were the parents. The prosecution alleged that the parents stored the cannabis in a hidden roof cavity within their house. It was common ground that the prosecution was required to prove knowledge by the parents that the cannabis was in the house.
The differing circumstances in each case will be relevant in assessing whether the person had possession of the prohibited drugs. The courts will attempt to strike a balance between the need to prevent the supply of prohibited drugs within the community, with a cautionary approach so as to not convict persons of drug offences who are not morally culpable.
What Penalties Exist for Drug Offences?
The penalties for drug offences will vary depending on the type of drug found, and the quantity in your possession.
- Possession Offences: A maximum $2,000.00 fine and/or 2 years imprisonment
- Supply Offences: A maximum $100,000.00 fine and/or 25 years imprisonment
For a more accurate assessment of the penalty you may receive, we recommend that you see one of our Criminal Defence Lawyers in Perth in order to obtain further legal advice and guidance on drug offences matter. There are well established common law cases, such as SOWA v Baldini [2015] WASCA 39, that can affect the ultimate outcome of your sentencing.
What Does ‘Intent to Sell or Supply’ Mean?
Under section 11 of the Act, if a person is caught with a specified amount of prohibited drugs in their possession, that person is deemed to have the drugs in their possession with the intent to sell or supply. The amounts are listed in Schedule V of the Act, as follows:
- Heroin: 2gm
- Amphetamine: 2gm
- Cannabis: 100gm
- Cocaine: 2mg
- Methylamphetamine: 2gm
If a person is found with more than the above amounts, they are presumed to have the intent to sell or supply. If this is the case the onus shifts and the accused must prove that they did not have the intent to sell or supply.
If the amount of drugs found is less than the specified amount in Schedule III of the Act the matter is able to be dealt with summarily in the Magistrates Court, otherwise it must be tried on indictment in the District Court. Amounts that allow a matter to be heard in the Magistrates Court include:
- Amphetamine: 4gm
- Cannabis: 500gm
- Cocaine: 4gm
- Methylamphetamine: 4gm
WN Legal Criminal Lawyers for Drug Offences in WA
WN Legal is one of the top boutique law firms in the Perth area. We have a skilled team of criminal Lawyers for drug offences who will guide you through the legal system. Our team has assisted hundreds of clients with their drug charges, and we can help you, as well.
Because we understand the courts and methods involved in defending drug charges, WN Legal will make sure your circumstances are understood and that you get the best possible outcome.
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FAQs for Drug Offences
What are the most common types for drug charges?
- Possession of Marijuana: Depending on the amount of marijuana found in the defendant’s possession This charge also relates to the possession of cannabis or its derivatives, and it can be classified as either a misdemeanor or a felony.
- Possession of Drug Paraphernalia: Such as pipes, bongs, or syringes, this charge relates to the possession of items that are used to consume or distribute drugs.
- Possession of a Controlled Substance: Such as cocaine, heroin, or prescription drugs like oxycodone, this charge refers to the possession of a substance that is controlled under state or federal law.
- Delivery of a Controlled Substance and Possession with Intent to Distribute: This charge relates to the possession of drugs with the intention of distributing them or to the sale or distribution of drugs.
- Illegal Manufacture of a Controlled Substance: Such as methamphetamine or LSD, this charge relates to the production of controlled substances.
- Drug Trafficking: This charge refers to the distribution of drugs or transportation across state or international borders, and it carries severe penalties.
If you or someone you know is facing drug charges, it’s crucial to seek the advice of a skilled criminal defense attorney. It’s essential to remember that drug offenses can carry severe penalties, including fines, jail time, and a criminal record.
What are serious drug offenders?
Trafficking, selling and cultivation. manufacture. importing and exporting are the categories for serious drug prosecutions.
What do WA police test for in a drug test?
Drug Driving Prohibition Notices
Cannabis, Ecstasy or Meth. WA Police will issue drivers who refuse a roadside drug test with a prohibition notice which bans them from driving for 24 hours or who test positive for specified drugs.
In Western Australia, what is the penalty for drug driving?
Driving while impaired by drugs
For a first offence, the penalty is a fine of $900 to $2500, minimum licence disqualification of 10 months. For a second offence, a minimum licence disqualification of 30 months and the penalty is a fine of $2100 to $3500 fine or 9 months imprisonment.
What will happen if I am convicted of drug charges?
Drug charges in Western Australia are taken very seriously, with penalties varying depending on the offense. Depending on the amount of drugs found, the maximum penalty will vary from a fine to an immediate term of imprisonment.
A drug conviction can lead to difficulties in various aspects of life, such as finding employment, securing housing, obtaining financial aid for education, and even in custody cases. Additionally, for individuals on visas or green cards, a drug conviction can lead to deportation. The severity of the consequences underscores the importance of seeking legal advice when facing such charges.
Can I be jointly charged with another for possession of a prohibited drug?
In Western Australia, it is possible to be jointly charged with another person for possession of a prohibited drug. If you and another individual pool money to purchase a controlled substance, you could be charged with joint possession. If the illicit substance is found in a communal area where one or more party has joint control over the item, it is possible for the prosecution to charge those who have been involved with the item.
What does the "intent to sell or supply" mean?
In Western Australia, if the amount of drug is found to be above a certain quantity, the law presumes that the possessor of the item has the intent to sell, or supply, the illicit substance. The onus then lies on the possessor to rebut the presumption. The Misuse of Drugs Act 1981 also makes it illegal to possess, manufacture, cultivate, use, or supply an illicit drug.
The act of supplying is broadly defined and can include delivering, dispensing, distributing, offering, or making available a prohibited drug to someone else. This means that “offering your mate a joint” can easily be considered as supplying a prohibited drug. Even the possession of drug-packaging items along with an illicit drug can be used as evidence of supply.
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Criminal Defence Lawyers – Perth’s Law Firm for Drug Offences
As a boutique practice, we provide highly personalised legal services to individuals looking to get a matter dealt with quickly and effectively by our lawyers.
Whether you’re facing charges or have just been informed by the Police that they want to “have a word with you”, you should know your rights and what they are looking to do with your case.
In most instances, your decision to make admissions can have a serious bearing on your matter. Our Perth lawyers are available to discuss your situation and your options.