Drug Offences
Offence
Possession
Producing/Cultivating
Supplying
Trafficking
Provision
1. A person
2. Unlawfully possesses
Section 1 Code
definition
Actual or constructive
3. Dangerous drug
1. Person
2. Unlawfully produces
Section 4 DMA
definition
3. Dangerous drug
1. Person
2. Unlawfully supplies
3. Dangerous Drug
4. To another (in or out
of QLD)
1. A person
2. Carries on the
business
3. Of unlawfully
trafficking
4. In a dangerous drug
Section
S 9 DMA
S 8 DMA
S 6 DMA
s 5 DMA
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Contents
Possession s 9 DMA ................................................................................................................................ 3
Producing s 8 DMA .................................................................................................................................. 5
Supplying s 6 DMA .................................................................................................................................. 6
Trafficking s 5 DMA ................................................................................................................................. 8
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Possession s 9 DMA
A person

Person includes an individual or corporation ss 32D, 36 and sch 1 AIA
Dangerous Drug
o
See sch 1 and 2
Unlawfully has possession


The criminal code shall, with all necessary adaptions be read and construed with this Act- so
can use Code definition of possess
Code s 1
o Includes having under control
o Whether for use or benefit of another
o Even though another person has actual possession or custody of the thing
Types of Possession Recgnised: s 1 Code
1. Actual- physical control or custody, manual handling + knowledge
2. Constructive- control, intention to control or claim of right + knowledge Lai v The Queen
3. Joint- consent to possession, or joint intention to possess knowledge- Davies v WA
 Based on notion of actual or potention control- no need to establish ownership as
such
 No possession where the person is unaware of the existence of the thing or
substance Clare
 Intention is a necessary element of possession- involving sufficient knowledge of the
presence of the drug by the accused Williams v R
 Knowledge that the thing is in fact a drug is not required
Presumption of Possession




Proof that a dangerous drug was at the material time in or on a place of which the
person was the occupier or concerned in the management or control of- is
conclusive evidence- that the drug was then in 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 s 129(1)(c) DMA
S 4 definition of place
R v McGregor
o Just because a person has items belonging in the premises does not mean
they are an occupier
R v Smythe
o Must be a degree of control or management for a person to be an occupier
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Claim of innocent possession?



S 24 of the CC is excluded unless the person shows an honest and reasonable belief
in the existence of any state of things material to the charge
And the burden of proving any authorisation to do any act or omission lies on that
person;
o Crown needs to prove knowledge of existence
o Accused needs to provide evidence of mistake of fact
S 129 DMA
Penalties


If schedule 1 drug and is of or exceeds 200g (sch 4 DMR)- 25 years maximum s 8(1)(a) DMA
If schedule 1 drug and exceeds is of or exceeds 2g (sch 3 DMR) but less than 200g; and
o Person was drug dependant at time of offence- 20 years imprisonment s 8(1)(b)(i)
o Not drug dependant- 25 years s 8(1)(b)(ii)



If schedule 2 drug and quantity is of or exceeds 2g (sch 3) – 20 years imprisonment s 9(1)(c)
In any other case, where dangerous drug is a thing specified in sch 1 or 2- 15 years s 9(1)(d)
For a schedule 1, part 2 drug a reference in subsection (1) to the quantity of the thing is a
reference to the whole weight of all part 2 drugs (whether same or different types) the
person is convicted of possessing s 9(2)
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Producing s 8 DMA
A person

Person includes an individual or corporation ss 32D, 36 and sch 1 AIA
Dangerous Drug
o
See sch 1 and 2
Unlawfully Produces

S 4 DMA definition
a. Prepare, manufacture, cultivate, package or produce;
b. Offering to do any act specified in paragraph (a)
c. Doing or offering to do any act preparatory to, in furtherance of, or for the purpose of,
any act specified in paragraph (a)



Ordinary meaning of cultivate: “bestow labour or attention to promote growth”- includes
mere watering but not just letting it grow O’Dempsey
o Merely harvesting is a part of cultivation Stratford v McDonald
Preparation- “ to make ready or bring into proper state for use by some special or technical
process” Calabria v The Queen
Posession of chemicals for use in the manufacture of a synthetic drug is insufficient R v Boyd
Penalty



If schedule 1 drug and exceeds 200g (sch 4 DMR)- 25 years maximum s 8(1)(a) DMA
If schedule 1 drug and exceeds 2g (sch 3 DMR) but less than 200g; and
o Person was drug dependant at time of offence- 20 years imprisonment s 8(1)(b)(i)
o Not drug dependant- 25 years s 8(1)(b)(ii)
Any other case for sch 1 drug- 20 years imprisonment s 8(1)(c)
o
o
For a schedule 2 drug if it exceeds 2g (sch 3 DMR) – 20 years s 8(1)(d)
Any other case for sch 2 drug- 15 years imprisonment s 8(1)(e)
o
For a schedule 1, part 2 drug a reference in subsection (1) to the quantity of the thing is a
reference to the whole weight of all part 2 drugs (whether same or different types) the
person is convicted of producing s 8(2)
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Supplying s 6 DMA
A person

Person includes an individual or corporation ss 32D, 36 and sch 1 AIA
Dangerous Drug
o
See sch 1 and 2
Supplies
S 4 DMA definition:
o
Cases
o
o
Accused has ‘supplied’ a drug to another person once they have knowingly placed the drug
in a mail delivery system with the intention that it be received by that person Pinkstone
Supply is broader than just selling- no need to prove any price or consideration paid for the
drugs. Transfer or proprietary rights by delivery constitutes supply Manisco
Complicity and Mistake
o
If a person counsel and procures the supply to themselves, still considered “another”
because of s 7 CC R v Maroney
o
Doesn’t matter if the accused is mistaken about the substance they purport to sell as long as
they have intention to sell Gauci v Driscoll
o
A mere offer constitutes an act of supply
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Aggravating factors s 2
a) Person supplied is a minor under 16
a. Sch 1- Life imprisonment s 6(1)(a)
b. Sch 2- 25 years s 6(2)(a)
aa) Person supplied is a minor 16 or more
 Sch 1- 25 years s 6(1)(b)
 Sch 2- 20 years s 6(1)(e)
b) Person supplied is intellectually impaired
1. Sch 1- 25 years s 6(1)(b)
2. Sch 2- 20 years s 6(1)(e)
c) Person supplied is within an educational institution
1. Sch 1- 25 years s 6(1)(b)
2. Sch 2- 20 years s 6(1)(e)
d) Person supplied is within a correctional facility
1. Sch 1- 25 years s 6(1)(b)
2. Sch 2- 20 years s 6(1)(e)
e) Person supplied does not know they are being supplied with the thing
1. Sch 1- 25 years s 6(1)(b)
2. Sch 2- 20 years s 6(1)(e)
Penalty


Sch 1 without aggravation- 20 years s 6(1)(c)
Sch 2 without aggravation- 15 years
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Trafficking s 5 DMA
A person

Person includes an individual or corporation ss 32D, 36 and sch 1 AIA
Dangerous Drug
o
See sch 1 and 2
Carries on the business
o
Trafficking means trading in or dealing R v Quaile
o (single sale can be sufficient if infers intention to repeat- but generally requires
continuity e.g. ongoing distribution system.
o first transaction of a distribution system is enough- so a courier can be carrying on
the business
o Indicia of carrying on business is a system
o
o
o
o
o
o
Advertising
Communicating
Setting up supply lines
Negotiating prices
Soliciting and receiving orders
Arranging deliver times and places
 Elhusseini
Penalty
o
25 years regardless
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Schedule 1 DMR
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Schedule 1 DMR

Allobarbital

Cannabis

Coca leaf

Codeine other than where it is compounded with 1 or more other medicaments in such a way
that it can not be readily extracted

Diazepam

Phenobarbital

Testosterone, other than in implant preparations for growth promotion in animals

Oxycodone

Opium

Morphine

Methadone

Lysergic acid

Ephedrine
10 | P a g e
Schedule 3 DMR
11 | P a g e
Schedule 4 DMR
12 | P a g e