Home » Criminal Law » Criminal Offences » Drug Law in Australia

Drug Possession Laws & Penalties in Australia: Expert Legal Defense

The Drugs Misuse and Trafficking Act 1985 (DMTA) deals with several offences in relation to illicit drugs, including drug possession. Drug possession penalties may be dealt with summarily in the Local Court for offence under Division 1 or on indictment in the District Court under Division 2. How the matter is dealt with will depend on the type of drug and the quantity found. A list of prohibited drugs for the purposes of the Drug Misuse and Trafficking Act can be found in Schedule 1.

If you have been charged with a drug possession, drug supply or importation offence, make sure to contact drug offence lawyer in Sydney.

Summary Possession

Under Section 10 of the DMTA a person who is in possession of a prohibited drug is guilty of an offence. In order to be charged under this section, the amount of the prohibited drug on you must be less than or equal to the Small Quantity of the drug, as set out in Schedule 1.

Maximum Penalties

The maximum penalty for drug possession is 2 years and/or a $2,200 fine.

Elements the Prosecution must prove against you

Prosecutors only need to prove you had the drugs in your possession. That is, even if the drugs were not yours or you did not know the drugs were on you, you will still likely be convicted.

Available Defences

Defences your drug possession lawyer may use include:

You are lawfully prescribed the drug; or
You care for someone who has been lawfully prescribed the drug; or
You are in possession of the drug for the purpose of administering the drug to someone who has been lawfully prescribed the drug; or
The drugs were planted on you, and you were not aware; or
You did not have exclusive possession of the drugs; or
There is insufficient evidence to prove that you were in possession of the drugs.

Indictable Drug Supply

Division 2 of the Drug Misuse and Trafficking Act 1985 (DMTA) sets out multiple offences relating to drug supply or commercial supply of drugs that are to be prosecuted on indictment under NSW criminal law, unless:

1) It falls under the exception in section 30;

2) The offence relates to a small quantity; or

3) The offence relates to cannabis.

The effect of this is that the matter must be dealt with in the District Court of NSW and if you plead guilty or are found guilty, you may face the full term of imprisonment and/or penalty.

Supply of Prohibited Drugs NSW

Under section 25 of the DMTA it is an offence to supply or take part in the supply of a prohibited drug. Schedule 1 of the DMTA sets out the quantity of each drug which would deem it an indictable quantity if found in your possession. Section 25 also sets out specific circumstances under which is an offence to supply a prohibited drug, such as:

· A person 18 years or above, supplying a drug other than cannabis leaf to someone under the age of 16 years;

· Taking part in the supply of a drug equal to or greater than the commercial quantity for that drug;

· A person 18 years or above procuring a person under 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person;

· A person 18 years or above procuring a person under 16 years to supply, or take part in the supply of, a drug equal to or greater than the commercial quantity for that drug.

Maximum Penalties

The maximum penalty for each offence will depend on:

· the type of drug;

· the quantity of the drug; and

· whether the matter is dealt with in the Local Court or District Court.

Quantity Category	Local Court Maximum Penalty	District Court Maximum Penalty
Less than Small Quantity	2 years imprisonment and/or 50 penalty units ($5,500 fine)	15 years imprisonment and/or 2000 penalty units ($220,000 fine)
At Least Small Quantity but Less Than Indictable Quantity	2 years imprisonment and/or 100 penalty units ($11,000 fine)	15 years imprisonment and/or 2,000 penalty units ($220,000 fine)
At Least Indictable Quantity but Less Than Commercial Quantity	2 years imprisonment and/or 100 penalty units ($11,000 fine)	15 years imprisonment and/or 2,000 penalty units ($220,000 fine)
At Least Commercial Quantity but Less Than Large Commercial Quantity	Not Applicable	20 years imprisonment and/or 3,500 penalty units ($385,000 fine)
At Least Large Commercial Quantity	Not Applicable	Life imprisonment and/or 5,000 penalty units ($550,000 fine)
Supply Prohibited Drug to Person under 16	30 months imprisonment and/or 100 penalty units ($11,000 fine)	25 years imprisonment and/or 4,200 penalty units ($462,000 fine)
Procure person under 16 to supply or take part in supply of prohibited drug	2 years imprisonment and/or 50 penalty units ($5,500 fine)	18 years imprisonment and/or 2,400 penalty units ($264,000 fine)

Elements the Prosecution must prove against you

To be found guilty of an offence under this section, the prosecution must prove (dependent on the particular offence:

· The substance was a prohibited drug/substance;

· That you engaged in supply;

· The supply was for financial or material gain;

· The amount of the drug supplied.

Available Defences

Defences for offences relating to drug supply include:

· Duress;

· Necessity; and

· Temporarily holding for another person. This is known as they ‘Carey defence’ and if successful may result in charges being reduced from supply to possession.

If you have been charged with deemed supply or ongoing supply of a traffickable quantity, you should speak to a drug supply lawyer.

Supply on an Ongoing Basis

Under s 25A of the DMTA, it is an offence to supply a prohibited drug on an going basis.

Maximum Penalties

The maximum penalty for the offence of supply prohibited drug on an ongoing basis is 20 years and/or 3,500 penalty units ($385,000 fine). If the matter is dealt with in the Local Court the maximum penalty is 2 years imprisonment and/or 100 penalty units ($11,000 fine).

Elements the Prosecution must prove against you

In order to be found guilty of the offence of supplying prohibited drug on an ongoing basis, the prosecution must prove:

1. You supplied a prohibited drug (other than cannabis leaf);

2. On 3 or more separate occasions;

3. During a 30 period; and

4. The supply was for material or financial gain.

Available Defences

Defences for charges of supply on an ongoing basis include:

· Duress; and

· Necessity.

Supply of Prohibited Plants

Under section 23(1)(b) of the DMTA, it is an offence to supply or take part in the supply of a prohibited plant. Further under s 23(2)(b) it is an offence to supply or knowingly take part in the supply of the commercial quantity applicable to prohibited plants. Prohibited plants include:

· Cannabis;

· Erythroxylon; and

· Poppies.

Maximum Penalties

Category	Local Court Maximum Penalty	District Court Maximum Penalty
Less than or equal to Small Quantity	2 years imprisonment and/or 50 penalty units ($5,500 fine)	15 years imprisonment and/or 2000 penalty units ($220,000 fine)
Less than or equal to Small Quantity and drug is cannabis plant or leaf	2 years imprisonment and/or 50 penalty units ($5,500 fine)	10 years imprisonment and/or 2000 penalty units ($220,000 fine)
At Least Small Quantity but Less Than Indictable Quantity	2 years imprisonment and/or 100 penalty units ($11,000 fine)	15 years imprisonment and/or 2,000 penalty units ($220,000 fine)
At Least Small Quantity but Less Than Indictable Quantity and drug is cannabis plant or leaf	2 years imprisonment and/or 100 penalty units ($11,000 fine)	10 years imprisonment and/or 2000 penalty units ($220,000 fine)
Indictable Quantity or Greater	Not applicable	15 years imprisonment and/or 2,000 penalty units ($220,000 fine)
At least Indicatable quantity but less than commercial quantity and drug is cannabis plant or leaf	2 years imprisonment and/or 100 penalty units ($11,000 fine)	10 years imprisonment and/or 2000 penalty units ($220,000 fine)

Elements the Prosecution must prove against you

In order to be found guilty of an offence relating to the supply of prohibited plants, the Prosecution must prove:

1) You supplied or knowingly took part in the supply of a prohibited plant;

2) The plant was a prohibited plant;

3) The number of plants (cannabis) or the weight of the plants.

Possession of Traffickable Quantity

Where someone is in possession of a traffickable quantity of a drug, it will be taken to be for the purposes of supply unless you can prove:

It is not for supply; or
Where the drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine that the drug was obtained in accordance with an approved prescription.

The traffickable quantity of a prohibited drug is set out in Schedule 1 of the DMTA. This offence is also referred to as “deemed supply”.

Maximum Penalties

The maximum penalty for possession of a traffickable quantity is 15 years imprisonment and/or 2000 penalty units ($220,000). If your matter is dealt with in the Local Court, the maximum drug possession penalty is 2 years imprisonment and/or 100 penalty units ($11,000).

Elements the Prosecution must prove against you

For the prosecution to prove that you were in possession of a traffickable quantity and that it was for the purposes of supply, the prosecution must prove:

That you were in possession of the prohibited drug; and
That it was for the purpose of supply.

Available Defences

The most common defence to an offence of possession of traffickable quantity is duress.

Commonwealth Offences for Drug Possession

The Commonwealth Criminal Code 1995 sets out offences which relate to the possession of controlled drugs and border-controlled drugs. A list of controlled drugs can be found in Schedule 1 of the Criminal Code Regulations 2019 and a list of border-controlled drugs can be found in Schedule 2 of the Criminal Code Regulations 2019. A determination can also be as to whether a drug is controlled or border-controlled on an emergency basis by the Australian Federal Police Commissioner.

Possessing border-controlled drugs or border-controlled plants reasonably suspected of having been unlawfully imported

Under section 307.10 it is an offence to be in possession of a substance that:

Is reasonably suspected to have been unlawfully imported; and
The substance is a border-controlled drug or border-controlled plant as prescribed by the Criminal Code Regulations 2019.

Maximum Penalties

For the prosecution to prove an offence under section 307.10 of the Criminal Code 1995, they must prove:

The substance is a border-controlled drug or border-controlled plant;
It was unlawfully imported; and
There was recklessness with relation to the knowledge of the substance being a border-controlled drug or border-controlled plant. That is, you knew that being in possession of the drug or plant, had a risk of harm or illegality.

Elements the Prosecution must prove against you

For the prosecution to prove an offence under section 307.10 of the Criminal Code 1995, they must prove:

The substance is a border-controlled drug or border-controlled plant;
It was unlawfully imported; and
There was recklessness with relation to the knowledge of the substance being a border-controlled drug or border-controlled plant. That is, you knew that being in possession of the drug or plant, had a risk of harm or illegality.

Available Defences

The most common defence to an offence of possessing border-controlled drugs or border-controlled plants suspected of being unlawfully imported is duress. This in part because the criteria of the drug being unlawfully imported is strict liability, that the prosecution only has to prove that it was and not that you had knowledge that it was.

Commonwealth Drug Supply

Division 302 of the Criminal Code 1995 (Cth) (Criminal Code) deals with the trafficking of controlled drugs, including. Division 304 deals with the selling of controlled plants.

Under the Criminal Code traffics has a broad meaning, which includes:

1) Selling the substance;

2) Preparing the substance for supply including packagaing or separating the substance.

3) Transporting the substance with the intention to sell;

4) Concealing the substance with the intention of selling it or assisting another person to sell any of it;

5) Possessing the substance with the intention of selling it.

Trafficking commercial quantities of controlled drugs

Under section 302.2 of the Criminal Code it is an offence to traffic a commercial quantity of a controlled drug.

Maximum Penalties

The maximum penalty for trafficking a commercial quantity of a controlled drug is life imprisonment and/or 7,500 penalty units ($2,062,500.00 as at January 2023).

Elements the Prosecution must prove against you

To be found guilty of the offence of trafficking a commercial quantity of a controlled drug, the prosecution must prove:

1) The substance was trafficked;

2) It was a controlled substance; and

3) The amount was a commercial quantity.

With respect to the substance being controlled, the fault element is recklessness. That is the accused was aware that there was a substantial risk and that it was unjustifiable to take that risk. With respect to the amount being a commercial quantity, the fault element is absolute liability which means, the prosecution does not need to prove intention, knowledge, negligence or recklessness. Further, the defence of honest and reasonable mistake of fact is not available.

Available Defences

Defences for the offence of trafficking a commercial quantity of a controlled drug include:

· Duress; and

· Necessity.

Trafficking marketable quantities of controlled drugs

Under section 302.3 of the Criminal Code it is an offence to traffic a marketable quantity of a controlled drug.

Maximum Penalties

The maximum penalty for trafficking a marketable quantity of a controlled drug is 25 years imprisonment and/or 5,000 penalty units ($1,375,000.00 as at January 2023).

Elements the Prosecution must prove against you

To be found guilty of the offence of trafficking a marketable quantity of a controlled drug, the Prosecution must prove:

1) The substance was trafficked;

2) It was a controlled substance; and

3) The amount was a marketable quantity.

With respect to the substance being controlled, the fault element is recklessness. That is the accused was aware that there was a substantial risk and that it was unjustifiable to take that risk. With respect to the amount being a marketable quantity, the fault element is absolute liability which means, the prosecution does not need to prove intention, knowledge, negligence or recklessness. Further, the defence of honest and reasonable mistake of fact is not available.

Available Defences

Defences for the offence of trafficking a marketable quantity of a controlled drug include:

· Duress; and

· Necessity.

Trafficking controlled drugs

Section 302.4 is a general offence of trafficking controlled drugs and is not concerned with the quantity of the drug.

Maximum Penalties

The maximum penalty for the offence of trafficking controlled drugs is 10 years imprisonment and/or 2,000 penalty units ($550,000.00 as at January 2023). If the matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 120 penalty units ($33,120.00 as at January 2023).

Elements the Prosecution must prove against you

To be found guilty of the offence of trafficking controlled drugs, the prosecution must prove:

1) The substance was being trafficked;

2) The substance is a controlled substance.

With respect to the substance being controlled, the fault element is recklessness. That is the accused was aware that there was a substantial risk and that it was unjustifiable to take that risk.

Available Defences

Defences for the offence of trafficking a controlled drug include:

· Duress; and

· Necessity.

Selling commercial quantities of controlled plants

Under section 304.1 of the Criminal Code it is an offence to sell a commercial quantity of a controlled plant.

Maximum Penalties

The maximum penalty for selling a commercial quantity of a controlled plant is life imprisonment and/or 7,500 penalty units ($2,062,500.00 as at January 2023).

Elements the Prosecution must prove against you

To be found guilty of the offence of selling a commercial quantity of a controlled plant, the prosecution must prove:

1) The plant was sold;

2) It was a controlled plant; and

3) The quantity sold was a commercial quantity.

With respect to the plant being controlled, the fault element is recklessness. That is the accused was aware that there was a substantial risk and that it was unjustifiable to take that risk. With respect to the amount being a marketable quantity, the fault element is absolute liability which means, the prosecution does not need to prove intention, knowledge, negligence or recklessness. Further, the defence of honest and reasonable mistake of fact is not available.

Available Defences

Defences for the offence of trafficking a commercial drug supply of quantity of a controlled drug include:

· Duress; and

· Necessity.

Selling a marketable quantity of controlled plants

Under section 304.2 of the Criminal Code it is an offence to sell a marketable quantity of controlled plants.

Maximum Penalties

The maximum penalty for selling a marketable quantity of a controlled drug is 25 years imprisonment and/or 5,000 penalty units ($1,375,000.00 as at January 2023).

Elements the Prosecution must prove against you

To be found guilty of the offence of trafficking a marketable quantity of a controlled drug, the prosecution must prove:

1) The plant was sold;

2) It was a controlled plant; and

3) The amount was a marketable quantity.

Available Defences

Defences for the offence of trafficking a marketable quantity of a controlled drug include:

· Duress; and

· Necessity.

Selling controlled plants

Section 302.4 is a general offence of selling controlled plants and is not concerned with the quantity of the plant(s).

Maximum Penalties

The maximum penalty for the offence of selling controlled plants is 10 years imprisonment and/or 2,000 penalty units ($550,000.00 as at January 2023). If the matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 120 penalty units ($33,120.00 as at January 2023).

Elements the Prosecution must prove against you

To be found guilty of the offence of selling a controlled plant, the prosecution must prove:

1) The plant was sold;

2) The substance is a controlled plant.

With respect to the plant being controlled, the fault element is recklessness. That is the accused was aware that there was a substantial risk and that it was unjustifiable to take that risk.

Available Defences

Defences for the offence of trafficking a controlled drug include:

· Duress; and

· Necessity.

Possession of controlled drugs

Under section 308.1 of the Criminal Code 1995 it is an offence to be in possession of a substance that is a controlled drug as prescribed by the Criminal Code Regulations 2019.

Maximum Penalties

The maximum penalty for this offence is 2 years imprisonment and/or 400 penalty units (currently $88,800). If your matter is dealt with the Local Court, the maximum penalty is 12 months imprisonment or 60 penalty units (currently $13,320).