The rise in popularity and number of music festivals in recent years has also seen a rise in police presence and arrests at these events. At the Sydney leg of the Big Day Out 2014 there were more than 120 arrests, mostly for drug related offences. 71 were charged with drug possession, two for drug supply and 25 people were issued with cannabis cautions. For many, this results in a conviction on their record and a penalty of some sort or, at the very least, an unpleasant visit or two to the Local Court. In some instances, it can be a whole lot worse. At the Perth leg of the Big Day Out 2009, Gemma Thoms died after taking three ecstasy pills on arrival as she allegedly did not want to be caught by police. Had she have been more informed about the risks and potential outcomes stemming from an approach by the police, the tragedy may have been avoided. This is part one of a two-part blog that will look at some of the legal considerations in this space. We thank our paralegal, Tim Bowring, for his significant contribution (in terms of research and writing, just to be clear) to these blogs.
Obviously we do not condone illicit drug use. However, we do feel it is important for people to know the rights and responsibilities of all parties and what you should do if you find yourself in a similar situation.
The distinctions between possession, use, supply and trafficking offences are important to know. Each have different elements to the offence and different maximum penalties. We have set out below a simplified explanation of each offence.
To prove possession, the prosecution must prove beyond reasonable doubt that the drug was in your custody or control and that you were aware of it.
The prosecution must prove that you took the drug. Obviously they cannot analyse the specific substance if it has been consumed, so for most convictions they rely on admissions made by you.
Possession and use are in the category of offences known as summary offences and can both result in a fine of up to $2,200 or imprisonment for up to 2 years or both.
Supply means sell or give away drugs or also simply agreeing to supply them. Supply also includes ‘deemed supply’ – possessing certain quantities of drugs which are deemed to be for the purpose of supply (because it is unlikely you’ll be consuming it all yourself). You can be charged with supply if you tell police you intended to sell even a small quantity of drugs found in your possession or if you deliver drugs to a friend.
You can also be found guilty of supply if you offer to supply drugs to someone. Even if you don’t have any and never intended to receive any, you can still be found guilty of this offence.
Drug trafficking is a general term that refers to a range of offences including commercial supply (usually with the connotation of supply on more than one occasion), production or manufacture or cultivation and conspiring to commit any of these offences. These charges refer to a ‘traffickable quantity’, which is a quantity of a drug is an amount deemed at law to be in a person’s possession for the purpose of supply.
Some traffickable quantities are:
(a) cannabis (leaf or heads) – 300 grams;
(b) heroin – 3 grams;
(c) amphetamines – 3 grams;
(d) ecstasy – 3 grams or 15 tabs; and
(e) LSD – 0.003 grams or 15 tabs.
If you are found in possession of a traffickable quantity you are presumed to be a supplier unless you can prove otherwise – for example, using them yourself or offering to get rid of them on someone else’s behalf.
For supplying or trafficking a drug found in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), the penalties are tougher. The severity of the penalty depends on the quantity of drug. The maximum penalty – for offences involving large commercial quantities of prohibited drugs – is a fine of $550,000 or life imprisonment or both.
In our next blog, we’ll look at the powers of police and your rights and responsibilities if questioned by police on suspicion of a drug offence.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.