Last updated 3 December 2018
The most important offences related to dangerous drugs created by the Drugs Misuse Act 1986 (Qld) (Drugs Misuse Act) are:
- trafficking in dangerous drugs (s 5)
- supplying dangerous drugs (s 6)
- receiving/possessing property obtained from trafficking or supplying dangerous drugs (s 7)
- producing dangerous drugs (s 8)
- publishing or possessing instructions for producing dangerous drugs (s 8A)
- possessing dangerous drugs (s 9)
- possessing, supplying and producing relevant substances or things such as chemicals and apparatus used to manufacture dangerous drugs (ss 9A–9C)
- possessing things used in connection with a crime involving dangerous drugs (s 10)
- possessing certain property reasonably suspected of having been used or involved in the commission of some drug-related offences (s 10A)
- possessing prohibited combinations of certain items (e.g. chemicals commonly used to manufacture dangerous drugs) (s 10B)
- permitting premises to be used for drug offences (s 11).
Trafficking in dangerous drugs
A person who unlawfully traffics in dangerous drugs commits an offence punishable by up to 25 years imprisonment for sch 1 drugs and up to 20 years imprisonment for sch 2 drugs (s 5 Drugs Misuse Act).
Even a single sale of a quantity of a drug, together with some proof that a business was being carried on, constitutes trafficking. Evidence of dealings in another state may be admissible to show continuation of the same business in Queensland.
There is a mandatory minimum non-parole period of 80% for a prisoner serving a term of imprisonment for the offence of drug trafficking (s 182A Corrective Services Act 2006 (Qld)). This means that every person convicted of drug trafficking after that date and sentenced to serve a term of imprisonment has to serve 80% of the prison term before they are eligible for release on parole. Queensland courts have no discretion to reduce this 80% mandatory minimum prison sentence. In practice, this will result in people convicted of drug trafficking serving much longer times in prison. This also applies to people convicted of counselling, procuring, attempting or conspiring to commit an offence of trafficking in dangerous drugs.
Supplying dangerous drugs
The offence of supplying dangerous drugs (s 6 Drug Misuse Act) attracts a penalty of up to 25 years imprisonment if the drug supplied is a sch 1 drug or 20 years if it is a sch 2 drug, and a circumstance of aggravation applies where the drug is supplied by an adult (a person 18 years or over) to:
- a minor (a person less than 18 years)
- a person with an intellectual impairment
- someone within an educational institution or jail
- a person who does not know they are being supplied with a dangerous drug.
Otherwise, supply of a sch 1 drug is punishable by a maximum penalty of 20 years imprisonment and supply of a sch 2 drug by a maximum of 15 years imprisonment.
What does ‘supply’ mean?
The definition of ‘supply’ is very broad and includes not only giving, selling, administering, transporting or distributing a drug, but offering to do such things or even doing anything preparatory to, in furtherance of or for the purpose of any of those acts (s 4 Drugs Misuse Act).
Offering to sell something that a person believes to be a dangerous drug, but on analysis is not, is still an offence. The prosecutors need not show an intention to make good the offer by supplying or even a belief that the supplier will be able to supply the drug before there can be said to be an offer.
The supply does not necessarily have to be to another. It can include arranging supply to oneself (s 7 Criminal Code Act 1899 (Qld)). The definition is broad enough to apply to the sharing of a marijuana cigarette.
Under s 6(2)(a) of the Drugs Misuse Act, severe penalties apply to the supply of dangerous drugs to children. There are two categories of children (or minors)—persons aged under 18 and persons aged under 16 years of age. For the supply of drugs to children aged under 16 years, the maximum penalties are:
- aggravated supply of a sch 1 drug to a minor under 16 years—life imprisonment
- aggravated supply of a sch 2 drug to a minor under 16 years—25 years imprisonment.
The penalties applying to the supply of dangerous drugs to children aged between 16 and 18 years are:
- aggravated supply of a sch 1 drug to a minor aged 16 to 18 years—25 years imprisonment
- aggravated supply of a sch 2 drug to a minor aged 16 to 18 years—20 years imprisonment.
Property obtained from trafficking or supplying drugs
This offence (s 7 Drugs Misuse Act) covers receiving or possessing any property, other than dangerous drugs, that is directly or indirectly obtained from offences of trafficking or supplying, even where those acts are committed outside Queensland (s 7(1)(b) Drugs Misuse Act). It is punishable by imprisonment for a maximum of 20 years. The property is most often cash. The property in question can also be forfeited.
In addition, any other person who receives or possesses property by mortgage, pledge or exchange and knows that the property was obtained by trafficking or supplying is guilty of an offence. This offence also carries the same maximum penalties as outlined above.
Producing dangerous drugs
‘Produce’ is broadly defined and includes preparation, manufacture, cultivation, packaging, production or offering to do any of the above, or doing anything preparatory to, in furtherance of or for the purpose of such things (s 4 Drugs Misuse Act). This definition also covers the cultivation of cannabis.
Drying out cannabis is preparation and, therefore, producing.
Cultivation requires some positive act but can cover such actions as watering, growing the seed, harvesting and ancillary activities to harvesting such as drying and stacking. Again, the maximum penalties are determined according to the schedule for the drug and the quantity.
Possessing dangerous drugs
Possession is not defined in the Drugs Misuse Act, although the definition of possession in s 1 of the Criminal Code Act 1899 (Qld) applies, and possession can include a situation where another person has actual custody of the thing concerned (s 116 Drugs Misuse Act). This definition is not exhaustive, and previous court cases have mapped out what possession means.
The Drugs Misuse Act provides that an occupier or manager of a place is deemed to be in possession of drugs found on premises under their control, unless they can show they neither knew nor had reason to suspect that the drugs were on the premises (s 129(1)(c) Drugs Misuse Act). This assists the prosecution greatly in proving possession against people who would otherwise be regarded as quite innocent for example parents who, although not aware of drugs on their premises, have reason to suspect their children may have drugs on the premises. The onus regarding the element of knowledge is reversed, and it is for an accused to negate knowledge or reason to suspect on the balance of probabilities. Note that the deeming provision in s 129(1)(c) of the Drugs Misuse Act only applies to possession of drugs. It does not apply to possessing anything else, such as a thing used in connection with a drug offence (such as a bong).
Whether someone is an occupier is a question of fact. Some interest or personal involvement in control or management of the premises must be shown. A person who is able to exclude strangers from their premises is an occupier. An occupier need not be physically on the premises at the relevant time. One premises may have a number of occupiers.
Possession can be actual, constructive or joint. Actual possession can include physical possession (e.g. in one’s pocket) or non-physical possession, which can occur when an item is under a person’s control, even if not physically within their possession (e.g. a pistol in a locked car for which the defendant had the sole key). Constructive possession occurs when the goods are in the possession of one person, but another person has the right to obtain the goods (e.g. items left in a cloakroom remain in the possession of the owner even though the cloakroom attendant has actual physical custody). Joint possession occurs when more than one person has possession of an item at the same time (e.g. a marijuana cigarette passed around at a party may be in the joint possession of all persons smoking it).
Possession requires both knowledge of the item concerned and control. Both knowledge and control must be proved beyond reasonable doubt, but proof of knowledge can be based on an inference drawn from all the circumstances. It is also enough for the prosecution to prove that the defendant knowingly possessed a dangerous drug, with the onus then shifting to the defendant to prove that their possession of the drug was innocent (e.g. they were mistaken as to the nature of that substance).
It is no defence that a person has forgotten that they had the drugs concerned. Also, control over the drugs need only be momentary (e.g. in the course of concealment). However, knowledge with a future intention to control does not constitute possession.
The High Court held in Williams v The Queen (1978) 140 CLR 591 that it is not possible to possess minute quantities of a drug. However, the circumstances of a case may allow an inference of possession of a larger quantity of the drug.
Instructions for producing dangerous drugs
It is an offence to unlawfully publish or possess instructions for producing dangerous drugs (s 8A Drugs Misuse Act). The penalty depends on the relevant drugs and schedules to which the instructions relate (25 years for sch 1 drugs and 20 years for s 2 drugs).
Possessing drug-related things
Pursuant to the Drugs Misuse Act, it is an offence punishable by a maximum penalty of 15 years imprisonment to possess things to be used or that have been used in connection with a drug offence (s 10(1) Drugs Misuse Act). This could cover anything involved in a drug offence, including the motor vehicle used to transport drugs and the hose used to water drugs. Such items can be forfeited to the Crown (pt 5 Drugs Misuse Act) and can be subject to a restraining order, pending forfeiture. When production is the crime in question, the Court of Appeal has held that it is sufficient if the person in possession intends another to use the item in connection with the production of a dangerous drug, even though no such production has occurred or is in contemplation by the other person.
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 (s 10(2) Drugs Misuse Act). The penalty is a maximum of two years imprisonment, and the offence can only be dealt with summarily by a Magistrates Court. To establish this offence, it is necessary 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 that person does not intend to use it in the future.
It is also an offence to possess property reasonably suspected of being used for or acquired from the commission of a drug offence, unless a satisfactory account of how the property was lawfully acquired is given to the court (s 10A Drugs Misuse Act). That account must be provided by the defendant and proven on the balance of probabilities. The penalty is a maximum of two years imprisonment.
Possession of precursor chemicals and drug laboratory equipment
Offences of possession, supply or producing precursors chemicals (substances used to manufacture dangerous drugs) or things (s 9A–9C Drugs Misuse Act) carry a maximum penalty of 15 years imprisonment. These offences are particularly aimed at those manufacturing drugs such as amphetamines. An offence of trafficking in precursors carries a maximum penalty of 20 years imprisonment (s 9D Drugs Misuse Act). Sections 9A–9D of the Drugs Misuse Act deal with ‘relevant substances or things’, which are defined in schs 8A and 8B of the Drugs Misuse Regulation 1987 (Qld) (Regulation) to include precursor chemicals and things used in drug production such as condensers, distillation heads and heating mantles.
It is an offence to unlawfully possess a prohibited combination of items used for drug production (s 10B Drugs Misuse Act). This offence is punishable by a maximum of 25 years imprisonment. Again, the Regulation sets out what could amount to a prohibited combination of items.
Permitting use of a place
It is an offence punishable by a maximum penalty of up to 15 years imprisonment for a person to permit a place that they occupy, manage or control to be used for an offence under pt 2 of the Drugs Misuse Act. A place includes a vehicle.
Other drug offences
The Drugs Misuse Act contains other offence provisions such as those relating to the handling and regulation of controlled substances. For instance, someone who lawfully owns or possesses a substance (e.g. ephedrine) must report any loss or theft to the police within two days, or they can commit an offence and be fined.
A number of offences are created by the Health Act 1937 (Qld) and Regulations made under it. These offences include offences relating to the possession, supply or dispensing of restricted drugs. Penalties are limited to fines, which vary in amount depending on the offence.
Power to fine drug offenders in Queensland
The courts have the power to impose fines for offences under the Drugs Misuse Act, instead of or in addition to imprisonment (s 126 Drugs Misuse Act). The maximum fines are:
- $652 750 (5000 penalty units; one penalty unit is currently $130.55) where the offence is one of which the person is convicted on indictment
- $13 055 (100 penalty units) where the offence is one of which the person is convicted in summary proceedings.