It is an offence to use, possess, produce or supply a prohibited drug in Australia. A drug-related case will be assigned to a specific court depending on the indictable quantity for each type of drug according to the schedule in the NSW Drug Misuse and Trafficking Act 1985. It is important to be aware of the different drug offences, the Court you will appear in, and the penalties imposed by the different courts.
The drug laws in Australia are complicated. The federal Criminal Code Act 1995 covers offences related to importing and exporting illegal drugs in Australia. It is a serious offence to import or try to import prohibited drugs or assist or be involved in the import or export of drugs.
The federal laws for drug offences are covered by:
The Poisons Standard is a legislative document that determines how a substance is restricted. This document is updated regularly through public consultations, and the drugs are listed in Schedules. For example:
Drug laws are different depending on the state or territory you find yourself in. The NSW Drug Misuse and Trafficking Act 1985 classify a wide range of drugs or plants as prohibited. The Act stipulates drug offences as:
Illicit or prohibited drugs are illegal drugs, non-prescribed use of prescription drugs, or the inappropriate use of other substances, for instance, glue. Some of the prohibited drugs as listed in the Drug Misuse and Trafficking Act 1985 (NSW) are:
The drugs listed in the Act are banned because they endanger a person’s health, their life, and the lives of other people. These drugs are not regulated in the same way as legal drugs. The sellers of these drugs do not disclose what substances are used in the drugs or how strong the drugs are.
The NSW Law Enforcement (Powers & Responsibilities) Act 2002 gives police the power to search suspects, their vehicles, or their belongings if they suspect a drug offence. The police can use sniffer dogs to detect drugs, and they are allowed to address people in public places if they suspect they are supplying, soliciting, or buying drugs.
A drug offence is an offence that involves a prohibited drug. Not all drug charges are the same. Drug charges are determined by several different factors. These factors are:
Drug users will face a different set of charges than drug dealers, and even in these categories, the charges can vary. Penalties will depend on the type and quantity of the drugs. It will also depend on whether the charge is a summary offence or a serious indictable offence and whether the charge is heard in the local or district Court.
In summary, maximum penalties depend on:
Drug-related charges can be heard in the local or district Court, the drug court, or the Court of appeal. The Drug Misuse and Trafficking Act 1985 contains a schedule detailing the indictable quantity of each type of drug. A matter will be dealt with in the District Court if the drug possession exceeds the indictable quantity as noted in the schedule. The Local Court will deal with matters if the indictable quantity is less than noted in the schedule unless an election is made.
There are four primary levels of court jurisdiction in New South Wales. The cases are distributed between these courts. The seriousness of the crime will determine which Court will preside over the matter or proceedings. The Local or District Courts hear all the civil and criminal cases. The Supreme Court hears the more serious cases, such as murder. The drug court is a specialised court hearing specific drug charges, and the Court of appeals deals with appeal cases.
The Local Court in NSW
The Local Court deals with criminal offences and civil disputes, and it handles both civil and criminal cases. The Local Court deals with summary offences in its criminal jurisdiction. The penalties for these offences are a fine, community service, a good behaviour bond, or imprisonment for up to two years.
These summary or minor indictable offences are usually offences like theft, Centrelink fraud, certain drug offences, and traffic offences. The Local Court also conducts preliminary examinations of cases and may order the accused to be dealt with in the higher courts.
The District Court handles or deals with more serious criminal and civil cases. It is the middle Court in the state’s legal jurisdiction. The Local Court refers matters to the District Court. A District Court Judge and jury or just a District Court judge can conduct proceedings in the District Court. However, it is rare to find a District Court judge presiding over a case without a jury. This usually only happens with technical or complicated cases.
The Drug Court in NSW
The Drug Court is a specialist Court. The Local or District Courts refer cases to the Drugs Court in some NSW areas. The Drug Court only hears cases where the accused is dependent upon drugs and if the person is eligible for the Court.
Eligibility requirements are:
The Drug Court would not oversee a case if the accused were involved in any violent conduct if they have been charged with a sexual offence if they suffer from mental illness, or for any other reason determined by the referring Court.
The Drug Court is fairly new in Australia, and this Court has been established based on the successes of similar courts around the world. The Drug Court addresses the underlying drug problem of the accused and then prescribes appropriate treatment options.
The Court of Appeal falls under or is a division of the Supreme Court. The Supreme Court only hears the most serious criminal trials in NSW. The Court of Appeal hears the appeals against the decisions made at the more serious criminal or civil trials in the District and Supreme Courts. The Court of Criminal Appeal focuses on the disputed point or error of law and not on the entire case.
There is no jury present in the Court of Appeal. Three to five judges will hear the appeal, review the evidence and base their decision on the evidence. They will also hear the arguments of the defence and the prosecution. The Court of Appeal may dismiss the appeal or allow the appeal. The Court will make a new decision on the case, or the Court might order a retrial.
The most common drug offences and the penalties imposed for the offences in NSW are:
The Drugs Misuse and Trafficking Act 1985 prohibit the possession of a prohibited drug. This drug possession offence carries a penalty of a maximum fine of $2,200 and/or imprisonment for two years.
This is a summary offence and the hearing will be presided upon in the Local Court. The prosecution will have to prove beyond reasonable doubt that the accused was in possession of the prohibited drug.
A person who knowingly takes part in the supply of a prohibited drug can be prosecuted under the Drug Misuse and Trafficking Act 1985. If the weight of the drug exceeds the threshold level stated in the Act, the accused may be charged with deemed supply where it is deemed that the possession of such a quantity of drugs will not be for personal use. The defence will have to prove possession was for personal use and not for supply.
Supply includes:
The maximum penalty for supplying a prohibited drug in the District Court is a fine of up to $220,000 and/or a prison sentence of fifteen years. A maximum penalty of two years applies if the matter is presided upon in the Local Court.
A person commits an offence under the Drug Misuse and Trafficking Act 1985 when they administer a prohibited drug to themselves by injection, smoking, swallowing, or snorting.
The maximum penalty for using or administering a prohibited drug to yourself is a fine of up to $2,200 and/ or a prison sentence of two years. This is a summary case and will be heard in the Local Court.
It is an offence under the Act to manufacture a prohibited drug. This crime carries heavy penalties, and the accused can receive a fine of up to $200,000 and/ or can be sentenced to fifteen years imprisonment.
The matter is strictly indictable and will be heard in the District Court. The prosecution has to prove that the accused manufactured a prohibited drug or knowingly took part in the manufacturing of a prohibited drug.
It is an offence under Section 23 of the Drug Misuse and Trafficking Act 1985 to grow or cultivate a prohibited plant in NSW. A person cannot sow or scatter the seeds of the plant, grow, nurture the plant or harvest the plant.
The maximum penalty for the offence of growing a prohibited plant is ten years imprisonment. The maximum penalty for growing a prohibited plant for commercial purposes is a fine from $220,000 up to $550, 000 or fifteen years imprisonment.
The matter will be finalised in the District Court if the number of prohibited plants exceeds the indictable quantity. If the number of prohibited plants does not exceed the indictable quantity the matter is a Table 1 offence and can be elected to the District Court, or if no election is made, the case will then be heard in the Local Court.
Synthetic drugs have been manufactured with similar ingredients to prohibited drugs, and these synthetic drugs produce similar effects as prohibited drugs. Amendments made in October 2013 in The Drug Misuse and Trafficking Act 1985 specify that if a synthetic drug produces a psychoactive effect on a person, it cannot be supplied, manufactured, or advertised.
The case will be heard in the Local Court, and the maximum penalty is a fine of up to $2,200 and/ or imprisonment for two years.
It is important to be familiar with the four primary levels of jurisdiction in New South Wales. A person facing a drug-related charge will appear in one of these courts depending on the type of drug offence. The Solicitors and Barristers at Lyons Law attend all courts in NSW. Drug offences are serious and drug laws are complicated. If you face a drug-related charge in any of these courts, contact us for the services of one of our drug offence lawyers in Sydney.
