Drug Possession
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In Queensland, it is an offence to Possess a Dangerous Drug. Possession of Dangerous Drug charges are among the most common matters dealt with by the Magistrates Court in Queensland. Dependent upon the specific circumstances you may find yourself, a charge of possession of dangerous drug can result in a large variety of outcomes.
What is a dangerous drug?
There is an extensive list of substances which constitute a dangerous drug in Queensland. These drugs are divided into ‘Schedule 1’ and ‘Schedule 2’ drugs in the of the Drugs Misuse Regulation 1987. Dependent upon which category a drug is in, it affects the severity of sentence which a person may receive. Schedule 1 contains the most serious illegal drugs, whereas Schedule 2 drugs are less serious.
Some examples of each include, but are not limited to:
Schedule 1
- Methylamphetamine
- Heroin
- Cocaine
- Lysergide (LSD)
- 3,4- Methylenedioxymethamphetamine (MDMA)
- Amphetamine
Schedule 2
- Cannabis
- 3, 4-Methylenedioxyamphetamine(MDA)
- Lysergic Acid
- Gamma-hydroxybutyrate (Fantasy)
- Opium
- Oxycodone
Depending upon the Schedule of the relevant drug and the quantity of the drug which has been possessed, your matter can be dealt with in either the Magistrates or District Court. Given the variety of factors which come into play when determining which Court a charge of possessing dangerous drugs must be dealt with in, it is best to discuss your personal circumstances with a Lawyer in order to determine where you stand. Further, depending which Court your matters are ultimately dealt with in, will affect the potential outcomes of your matter.
What is a restricted drug?
It is a further offence, for a person to possess a restricted drug which was not lawfully obtained. As an example, possessing a prescription drug which has not been prescribed to you can constitute an offence. As such, it is imperative that you ensure that all medications which you possess, you are lawfully allowed to do so. Commonly, we are approached by clients who have lawfully obtained over the counter medications overseas which are actually prescription medications in Australia. As these clients do not have a prescription for these medications, they are criminally liable for the charge of possessing a restricted drug despite not obtaining these items in Australia.
What constitutes Possession?
If you are charged with possession of a dangerous drug, this can constitute a variety of different scenarios. Whilst it is commonly thought that the drug must be in your actual possession, this is not always the case. Possession can also occur through occupation of a space, non-physical possession and joint possession.
Where someone is occupying a space, for example, in a share house, where one party has actual possession of a dangerous drug in a common space like the lounge room, it is common for multiple people who occupy that space to be charged with possession. In these circumstances, it is then the responsibilities of the parties to disprove that they had possession of the substance. As such, they must show the Court that they neither knew, nor had reason to suspect there were drugs and that the drugs were not under their control. Possession can also be made in scenarios where a person does not have physical possession, for example if a relevant drug is sent via the post which have been ordered and paid for, that person legally has possession of the package, even if the package is not picked up. Finally, possession can also occur jointly. This may occur in situations such as where multiple people are found to be smoking a joint of cannabis. Despite only one person having actual possession at the time when found by Police, all persons present could be charged with having joint possession.
What constitutes Possession?
If you are charged with possession of a dangerous drug, this can constitute a variety of different scenarios. Whilst it is commonly thought that the drug must be in your actual possession, this is not always the case. Possession can also occur through occupation of a space, non-physical possession and joint possession.
Where someone is occupying a space, for example, in a share house, where one party has actual possession of a dangerous drug in a common space like the lounge room, it is common for multiple people who occupy that space to be charged with possession. In these circumstances, it is then the responsibilities of the parties to disprove that they had possession of the substance. As such, they must show the Court that they neither knew, nor had reason to suspect there were drugs and that the drugs were not under their control. Possession can also be made in scenarios where a person does not have physical possession, for example if a relevant drug is sent via the post which have been ordered and paid for, that person legally has possession of the package, even if the package is not picked up. Finally, possession can also occur jointly. This may occur in situations such as where multiple people are found to be smoking a joint of cannabis. Despite only one person having actual possession at the time when found by Police, all persons present could be charged with having joint possession.
What does prosecution need to prove?
For a charge of possession of a dangerous drug, it is necessary that the Prosecutions confiscate the dangerous drugs which are alleged to have been possessed. For a possession charge to be proven, it is necessary that Prosecution can prove not only the make-up of a substance, but also the purity of the substance. As such, Police must have possession of the actual drug in order to analyse its make-up and purity. Once this analysis has occurred, your charge may be amended to reflect the actual weight of the dangerous drug only. Because of this, while you might originally be charged with possessing 2 grams of cocaine, once the purity has been analysed, that charge may be adjusted to instead reflect the actual weight of 1.2 grams.
Defences
There are defences available to those charged with possessing a dangerous drug, though they are only usually available in limited circumstances. Mistake of fact, where the person in possession of the dangerous drug, genuinely and reasonably believed that the substance was not in fact a dangerous drug, but rather, another lawful substance, may be argued in the appropriate circumstances to alleviate criminal liability. Further, if you have a prescription for the substance or the substance alleged to be a dangerous drug is actually some other lawful substance, this is a defence to possession of a dangerous drug.
Should you be unsure whether your circumstances constitute a defence to the charge of supplying dangerous drugs, we advise that you seek legal advice as soon as possible so that your defence is given the best possible chance from the moment you are questioned or charged.
Sentencing Outcomes
There are serious maximum penalties for a charge of possessing dangerous drugs. Depending upon your age, criminal history and a variety of other factors, a charge of possession can result in an outcome anywhere from the Court-ordered completion of a drug diversion program right up to a period of actual imprisonment. If proceeding to sentence for a charge of possession of a dangerous drug, entering into negotiations with Prosecutions or obtaining the right materials prior to sentence to put you in the best possible position when appearing before the Court can make the difference between a good and bad outcome. The possible maximum penalties in your own circumstances are going to depend on a variety of factors, so we advise that you seek legal advice.
Possession of Things / Utensils
Often accompanying charges of possession of a dangerous drug is the charge of possessing things in connection with a crime involving dangerous drugs. These charges can be laid for possession of a large variety of items ranging from drug paraphernalia to every-day household items which have been used to store, possess, supply or use dangerous drugs. For example, if you are found to be possessing a dangerous drug, and the police find 5 empty tiny resealable plastic bags also on your person, you could be charged with possession of things in relation to these bags.
The charge is ordinarily dealt with summarily in the Magistrates Court and is often the less serious charge when coupled with other drug charges, though it does carry the maximum penalty of imprisonment. Knowing all your options, including the worst-case scenario and which avenues you have available to defend the charge completely or to minimise the penalties you otherwise would have received, puts you in the best position to continue your life after facing criminal charges.