Possess Dangerous Drug ¦ Brisbane Criminal Defence Lawyers

s9 Drugs Misuse Act 1986 creates the offence of Possess Dangerous Drug.

What the prosecution must prove.

The prosecution must prove:

1. Physical control or custody of the thing containing a drug.

2. Knowledge of the thing containing the drug.

Proof of Possession and Deemed Possession.

S129(1)(c) Drugs Misuse Act 1986 deems possession of a drug without the need to prove knowledge or control over the drug.

The law makes it easier for the prosecution to prove possession if the evidence proves beyond reasonable doubt that the defendant was an occupier of, or a person concerned in the control and management of, the place where the drugs were found.

A place includes a dwelling, business premises or a motor vehicle. It is not enough to simply be in a house or car.

An occupier will usually have some legal right to occupation. Occupation involves exercising some degree of control over, or management of, a relevant place. An occupier will be able to exclude others. A person may jointly occupy a place with another or others.

To be concerned in the management or control of a place, a person must have the power to make decisions about the place and carry them out or have them carried out. Bare ownership is not sufficient.

The law requires a Magistrate or jury find a defendant guilty of possession in these circumstances unless they prove they neither knew or had reason to suspect that the drug was in or on that place. The law reverses the onus of proof which is placed on the defendant.

The available defences.

Mistake of Fact. A defendant is not guilty if they honestly and reasonable believed the thing did not contain a drug. It is for the defendant to prove this. The standard of proof is the balance of probabilities, that it was more likely than not.

The usual penalties for Possess Dangerous Drug.

The maximum penalty for the criminal offence of Possess Dangerous Drug depends on the nature of the drug, the quantity and in some case whether the defendant is a drug dependent person. The following maximum penalties apply to the quantities specified for each drug:

Drug 15 years 20 years 25 years
Cannabis > 500 grams ≥ 500 grams N/A
Cocaine > 2 grams ≥ 2 grams < 200 grams* 200 grams
Ecstasy (MDMA) > 2 grams ≥ 2 grams < 200 grams* 200 grams
Ice (methamphetamine) > 2 grams ≥ 2 grams < 200 grams* ≥ 200 grams
Heroin > 2 grams ≥ 2 grams < 200 grams* ≥ 200 grams
LSD > 0.004 grams ≥ 0.004 grams < 0.4 grams* ≥ 0.4 grams
Steroids > 50 grams ≥ 50 grams < 5kg* ≥ 5kg

*If the evidence establishes the defendant is drug dependent, otherwise 25 years.

The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a role in defining the relative seriousness of an offence. The maximum penalty is hardly ever imposed.

The penalties for offences of Possess Dangerous Drug, involving possession of small quantities of drugs for personal use are completely divorced from the prescribed maximum.  The usual penalty for a first offence is a bond (often with drug diversion) or a fine.  On the other hand penalties for possession of even modest quantities in excess of the prescribed amounts can attract sentences of imprisonment for a first offence.

book a complimentary initial consultation with an accredited specialist

LEARN ABOUT SIMILAR OFFENCES

Production
Supply
Trafficking

Did this information help?

Provide your feedback so we can continue to improve the information on this page.

This information is provided to make the law and legal rights accessible.

The law is intended to serve everyone and it is important it does so.

Knowledge is, as always, power.

    Cavanagh Gillies Criminal Lawyers

    DRUG POSSESSION

    s9 Drugs Misuse Act 1986 makes it an offence to possess a dangerous drug.

    What the prosecution must prove.

    The prosecution must prove:

    1. Physical control or custody of the thing containing a drug.

    2. Knowledge of the thing containing the drug.

    Deemed Possession.

    S129(1)(c) Drugs Misuse Act 1986 deems possession of a drug without the need to prove knowledge or control over the drug.

    The law makes it easier for the prosecution to prove possession if the evidence proves beyond reasonable doubt that the defendant was an occupier of, or a person concerned in the control and management of, the place where the drugs were found.

    A place includes a dwelling, business premises or a motor vehicle. It is not enough to simply be in a house or car.

    An occupier will usually have some legal right to occupation. Occupation involves exercising some degree of control over, or management of, a relevant place. An occupier will be able to exclude others. A person may jointly occupy a place with another or others.

    To be concerned in the management or control of a place, a person must have the power to make decisions about the place and carry them out or have them carried out. Bare ownership is not sufficient.

    The law requires a Magistrate or jury find a defendant guilty of possession in these circumstances unless they prove they neither knew or had reason to suspect that the drug was in or on that place. The law reverses the onus of proof which is placed on the defendant.

    The available defences.

    Mistake of Fact. A defendant is not guilty if they honestly and reasonable believed the thing did not contain a drug. It is for the defendant to prove this. The standard of proof is the balance of probabilities, that it was more likely than not.

    The usual penalties.

    The maximum penalty for the criminal offence of Possession of a Dangerous Drug depends on the nature of the drug, the quantity and in some case whether the defendant is a drug dependent person. The following maximum penalties apply to the quantities specified for each drug:

    Drug, 15 yrs 20 yrs 25 yrs
    Cannabis <500g ≥ 500 g N/A
    Cocaine <2g ≥2 <200 g* ≥200g
    Ecstasy <2g ≥2 <200g* ≥200g
    Ice <2g ≥2 <200g* ≥200g
    Heroin <2g ≥2 <200g* ≥200g
    LSD <.004g ≥ .004 < .4g* ≥.4g
    Steroids <50g ≥ 50 < 5kg* ≥5 kg

    *If the evidence establishes the defendant is drug dependent, otherwise 25 years.

    The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a role in defining the relative seriousness of an offence. The maximum penalty is hardly ever imposed.

    The penalties for possession of small quantities of drugs for personal use are completely divorced from the prescribed maximum.  The usual penalty for a first offence is a bond (often with drug diversion) or a fine.  On the other hand penalties for possession of even modest quantities in excess of the prescribed amounts can attract sentences of imprisonment for a first offence.

    book a complimentary initial consultation with an accredited specialist