Drug Charges can include Possession, Supply, Cultivation, Producing, Trafficking, and Importing/Exporting of illegal drugs.
The seriousness of the charge will depend on the type and quantity of the drug along with the circumstances and evidence obtained by police. In general terms, harder drugs, greater weights, and purer quantities attract more severe penalties.
Rawlings Criminal Law have successfully represented and defended clients charged with drug offending relating to:
We will fight for you – address all legal issues and challenge all evidence, including illegal searches, under-cover police, informants, and telephone intercepts.
The most common offences related to dangerous drugs created by the Drugs Misuse Act 1986 (Qld) are:
While there is no legal definition of possession in the Drugs Misuse Act, for a possession of a prohibited drug charge to be proven, there are essentially three elements the prosecution must prove beyond reasonable doubt:
We have frequently represented accused who have been charged with possessing drugs that actually belonged to another person. Even in situations where the drugs were located by the police in your home or vehicle, it does not necessarily mean that they were in your “possession”.
The law in this area is complex as it deems that the manager or occupier of a place is in “possession” of any drugs found there unless they can show they had no reason to suspect that the drugs were there.
An example of this legal complexity is seen in instances where parents suspect their teenager is using and is keeping a “stash” at home.
In these circumstances, police may choose to charge the parents, thus leaving them with the onus of establishing that they neither knew nor reasonably suspected the drugs to be in their house.
You can possess a prohibited drug by having either actual physical custody of the drug or by having control or dominion over the drug. You can, therefore, be found to possess a prohibited drug by just physically holding it. For example, if you are passed a joint at a party and do not smoke yourself but pass it on, for that moment that you hold it you are actually guilty of possession.
This is an interesting and complex area of the law and is fertile ground for a defence to drug charges. For more information we will need to sit and speak with you in detail about your individual case and circumstances.
The word “supply” is broad and can include to sell, give, deliver, dispense, distribute, forward, make available, provide, or send. Somewhat oddly, in some circumstances it is a legal possibility to supply to yourself (for example, to arrange for drugs to be delivered to your address).
Generally, the onus of proof is on the prosecution to satisfy the court beyond reasonable doubt all elements of a drug possession charge. However, in cases where the prosecution is able to prove the element of possession and the quantity exceeds the specified amount to lead to a presumed intent to supply, the onus will shift to the accused to prove on the balance of probabilities that the drugs were not intended to be supplied to another.
Sometimes the particular circumstances of the case may create a difficult task to prove that there was not an intention to supply or sell the prohibited drug. These circumstances may include situations such as where police locate many clip bags, incriminating text messages, scales, large sums of cash, and lists of monies owing by people (“tick lists”).
Supply charges are treated very seriously by the Courts and frequently lead to custodial sentences. The Misuse of Drugs Act provides for sentences of up to 25 years imprisonment if the drug is a schedule 1 drug (such as methamphetamine or cocaine) or 20 years if it is a schedule 2 drug (such as cannabis) and a circumstance of aggravation applies – such circumstances are supply to:
Rawlings Criminal Law have successfully defended many people who have faced drug supply charges are adept at fighting for you to ensure you are not wrongfully convicted.
‘Produce’ is broadly defined and includes preparation, manufacture, cultivation, packaging, production or offering to do any of the above, or doing anything preparatory to and in furtherance of such things.
The definition is so broad that many acts one would not equate with ‘producing’ in the normal sense of the word are criminalised as production.
Examples are the weighing and bagging of cocaine or the drying out and picking of cannabis.
Cultivation requires some positive act but can cover such actions as watering, growing the seed, harvesting, and stacking. The penalties handed down by the Court vary as widely as the acts themselves are determined according to the actual involvement, schedule for the drug, duration of production, and the quantity.
Possessing things to be used or that have been used in connection with a drug offence is an offence punishable by a maximum penalty of 15 years imprisonment.
Examples of such ‘things’ are the motorbike or boat used to transport drugs. Such items can be subject to an application for forfeiture to the Crown.
It is also an offence to possess things (other than syringes or needles) for use in connection with the administration, consumption, or smoking of a dangerous drug, or things that have been used for such purposes. The most common example of this is a pipe or bong that has been used for smoking cannabis or ice.
To establish this offence, it is necessary for the prosecution to prove either that the person charged used the thing in the past for the administration, consumption or smoking of a dangerous drug, or that they intended to use it in the future.
It is not an offence to possess a utensil used by someone else in the past to smoke a dangerous drug if the person charged does not intend to use it in the future.
Trafficking in dangerous drugs is perhaps the most serious drug offence and it is punishable by up to 25 years imprisonment (depending on the type of drug which is trafficked).
The offence of trafficking is created by section 5 of the Drugs Misuse Act 1986 which says:
A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime. Maximum penalty—
25 years imprisonment; or
20 years imprisonment.
Trafficking essentially means running a commercial trade of a drug. It is not necessary that a commercial drug enterprise be of a particular size to constitute trafficking – although small scale trade or simply buying and selling between individuals might open the door to negotiating the charge down to possessing or supplying a dangerous drug instead. The benefit to this is that an almost inevitable sentence of imprisonment becomes the possibility of arguing for a non-custodial sentence.
With the consequences of being sentenced for drug trafficking being so serious, if you or a family member has been charged with drug trafficking, it is essential that you obtain legal representation as soon as possible.
Serious drug offences, particularly importations, are rarely committed by one person. In most cases they involve multiple players working at different levels and in different ways.
It is a Commonwealth offence to:
As a result of the complexities of this type of offending, Commonwealth Prosecutors often have to rely on extension of criminal liability provisions involving conspiracy, joint commission or accessorial liability in order to prosecute all those involved in an importation.
Defending drug importation offences are an important part of our work and, as they attract some of the highest penalties imposed by courts, must be put into competent legal hands.
Imprisonment: Imprisonment is the most serious penalty which a court can impose upon a person. Despite its name, imprisonment does not necessarily mean actual time in jail and can sometimes be served by way of immediate parole, suspended imprisonment, or Intensive Correction Order.
Effective and knowledgeable lawyers such as Rawlings Criminal Law are experts in arguing for such non-custodial sentences.
Intensive Correction Order: An Intensive Corrections Order (‘ICO’ for short) requires a person to adhere to a number of requirements (normally including rehabilitative courses and conditions) that the Court will order and closely monitor.
Probation: A court can make a Probation Order either by itself, meaning the whole of the sentence is probation, or as a component of a sentence of imprisonment, meaning that a person is ordered to serve a period of time in prison and is then subject to a probation requirement upon release.
Community Service Order: A Community Service Order (‘CSO’) is an order which requires a person to perform unpaid work, normally at some kind of community facility, for a stated number of hours (to a maximum of 240) within a nominated time (usually 6 or 12 months).
Recognisance: A recognisance is a promise which a person makes to be of good behaviour for a stated period of time. A court is empowered to release a person who enters into a recognisance, either with a surety, which is a sum of money which the person agrees to pay if they breach the recognisance.
Fines: A court is empowered to impose a fine, which is a sum of money which a person is required to pay to the State.
Section 19 dismissal: A court can discharge a person absolutely, or upon them entering into a recognisance, without recording a conviction against them, if it is satisfied pursuant to s19 of the Penalties and Sentencing Act 1992 that it is legally appropriate to do so.
Drug Diversion: There are several excellent options for having more minor drug offences diverted out of the Court system and thereby protecting a person’s clean criminal record. There are requirements that need to be met and established to the satisfaction of the Court before this opportunity is made available and Rawlings Criminal Law are able to talk you through your particular charges and circumstances to establish whether we are likely to be able to successfully argue for you to be accepted into these rehabilitative programs.
In all cases where a person is sentenced to a penalty other than jail, the Court can sometimes be persuaded to not record a conviction against you, meaning your criminal record will remain clear and any complications with work or travel may be avoided.
Drug charges are serious matters and many carry tough penalties upon conviction.
If you suspect that you may be under investigation, or if you have been charged with a drug offence, it is vital to get competent legal advice as early as possible.
Rawlings Criminal Law are experienced, knowledgeable, and personable lawyers who will fight to protect your best interests.
Our key function as your defence is to argue against the prosecutor’s submissions by presenting your information in a meaningful, relevant, legally admissible, and persuasive way.
In building our strongest application for you to be granted bail, we will design and structure your submission so that: