Drug Offences in the ACT

Possessing Cannabis in the ACT

Under Section 171AA(1) of the Drugs of Dependence Act 1989 (ACT), if you are under the age of 18 it is an offence to possess:

  • 50g or less of dried cannabis; or
  • 150g or less of cannabis that has been harvested and:
    • Is not dried cannabis; or
    • Is a mixture of dried cannabis and cannabis that is not dried cannabis.

The maximum penalty for this offence is 1 penalty unit ($275).  If you are 18 years or older this conduct is decriminalised and you cannot be prosecuted in court.

Under Section 171AA(2) of the Drugs of Dependence Act 1989 (ACT), it is an offence to possess, whether you are an adult or child:

  • More than 50g of dried cannabis; or
  • More than 150g of cannabis that has been harvested and:
    • Is not dried cannabis; or
    • Is a mixture of dried cannabis and cannabis that is not dried cannabis.

The maximum penalty for this offence is imprisonment for 2 years.

For possession of cannabis in the ACT, prosecutors must establish specific criteria. For individuals under 18, it involves proving the accused’s age, possession of cannabis, and possession of 50g or less of dried cannabis, or 150g or less of harvested cannabis that is not dried or a mixture of both. For individuals of any age, prosecutors need to prove possession of cannabis exceeding 50g of dried cannabis or more than 150g of harvested cannabis that is not dried or a mixture.

Your criminal defence lawyer may dispute possession or knowledge of the cannabis, challenge measurement accuracy, highlight procedural errors in evidence handling, or argue for legitimate medical use.

Are there any exceptions to possessing cannabis in the ACT?

Yes, if you possess cannabis and you are authorised under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law, then your actions are lawful. This means that if you have a licence or approval to possess cannabis, you cannot be charged under this section.

What is the legal definition of cannabis?

Under the Drugs of Dependence Act, cannabis is defined as a cannabis plant, whether living or dead, and includes any flowering or fruiting top, leaf, seed, stalk, or any other part of a cannabis plant and any mixture of parts of a cannabis plant or cannabis plants. This does not include cannabis resin, cannabis fibre or cannabis food products,

Dried cannabis is regarded as cannabis that has been subjected to a drying process under the Act.

What does ‘possess’ mean under this section?

In order to prove the cannabis was in your possession, the prosecution is bound to prove beyond reasonable doubt that:

  • The cannabis was in your custody or control;
  • You were aware that the cannabis was in your custody or control; and
  • The substance was cannabis

To prove that the cannabis was in your custody, it must be proven that you had immediate physical possession of the drug. This includes if the cannabis is in your pocket, bag, or anywhere else on your person.

To prove that you had control of the cannabis, the prosecution has to prove you had the right to do something with it. This means that you are in the position to do whatever you wanted to do with the cannabis, such as take it, give it friends, deliver it to someone or even just be holding it for a friend with the intention to give it back to them.  If the prosecution cannot prove who within a house or vehicle had exclusive possession or control of the drug then this element cannot be proven.

You must also have the knowledge that the cannabis is on your person and that it is cannabis. If a friend gives you their bag to hold and there is cannabis in there that you do not know about, then you do not have the requisite knowledge required to be guilty of the offence.

Possessing Drugs of Dependence in the ACT

Under Section 169 of the Drugs of Dependence Act 1989 (ACT) it is an offence to possess a drug of dependence.

The maximum penalty for this offence is imprisonment for 6 months imprisonment.

To prove possession of a drug of dependence, the prosecutor must establish:

  1. Possession: The accused had control of the drug.
  2. Knowledge: The accused knew they had the drug.
  3. Nature: The substance is a legally defined drug of dependence.

What is a ‘drug of dependence’?

A drug of dependence is defined in the Drugs of Dependence Act as “a substance prescribed by regulation as a drug of dependence”. Common examples of these substances include, but are not limited to, cocaine, methylamphetamine (meth/ice), methadone, morphine, oxycodone and remifentanil.

Are there any exceptions to possessing a drug of dependence?

Yes, instead of being prosecuted for the offence, police can issue a civil infringement notice or divert you to drug or other counselling or treatment if the amount possessed is less than the following amounts for the following types of drugs:

  1. Amphetamine – 1.5g
  2. Cocaine – 1.5g
  3. Methylamphetamine – 1.5g
  4. MDMA – 1.5g
  5. Heroin – 1g
  6. Lysergic acid – 0.001g
  7. LSD – 0.0001g
  8. Psilocybine – 1.5g

Also, if your possession of a drug of dependence is authorised under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law, then the possession is lawful. This means that if you have a licence or approval to possess a drug of dependence, you cannot be charged under this section.

What does it mean to ‘possess’ a drug of dependence?

In order to prove the substance was in your possession, the prosecution is bound to prove beyond reasonable doubt that:

  • That the substance was in your custody or control;
  • You were aware that the drug was in your custody or control; and
  • That the drug was a drug of dependence

To prove that the substance was in your custody, it must be proven that you had immediate physical possession of the drug. This includes if the drug is in your pocket, bag, or anywhere else on your person.

To prove that you had control of the drug, the prosecution has to prove you had the right to do something with it. This means that you are in the position to do whatever you want to do with the drug, such as take it, give it to friends, deliver it to someone or even just be holding it for a friend with the intention to give it back to them. If the prosecution cannot prove who within a house or vehicle had exclusive possession or control of the drug then this element cannot be proven.

You must also have the knowledge that the drug is on your person and that it is a drug of dependence. If a friend gives you their bag to hold and there are drugs in there that you do not know about, then you do not have the requisite knowledge required to be guilty of the offence.

How can I be defended for being in possession of a drug of dependence?

Some common ways your lawyer can help you be found not guilty of the offence of possession of a drug of dependence are by proving you do not meet one of the elements of possession, the substance is not a drug of dependence, or you were unaware that it was a drug of dependence, or that you are authorised to be in possession of the drug through the Medicines, Poisons and Therapeutic Goods Act 2008 or another territory law.

 

Possessing Prohibited Substances in the ACT

Under Section 171 of the Drugs of Dependence Act 1989 (ACT) it is an offence to possess a prohibited substance.

The maximum penalty for this offence is imprisonment for 6 months.

What is a ‘prohibited substance’?

A drug of dependence is defined in the Drugs of Dependence Act as “a substance prescribed by regulation as a prohibited substance”. Common examples of these substances include, but are not limited to, cocoa leaf, DMT, heroin or MDMA (ecstasy).

Are there any exceptions to possessing a prohibited substance? 

Yes, instead of being prosecuted for the offence, police can issue a civil infringement notice or divert you to drug or other counselling or treatment if the amount possessed is less than the following amounts for the following types of drugs:

  1. Amphetamine – 1.5g
  2. Cocaine – 1.5g
  3. Methylamphetamine – 1.5g
  4. MDMA – 1.5g
  5. Heroin – 1g
  6. Lysergic acid – 0.001g
  7. LSD – 0.0001g
  8. Psilocybine – 1.5g

Also, if your possession of a prohibited substance is authorised under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law, then the possession is lawful. This means that if you have a licence or approval to possess the prohibited substance, you cannot be charged under this section.

What does it mean to ‘possess’ a prohibited substance? 

In order to prove the substance was in your possession, the prosecution must prove beyond reasonable doubt that:

  • That the substance was in your custody or control;
  • You were aware that the drug was in your custody or control; and
  • That the substance was a prohibited substance

To prove that the substance was in your custody, it must be proven that you had immediate physical possession of the drug. This includes if the drug is in your pocket, bag, or anywhere else on your person.

To prove that you had control of the drug, the prosecution has to prove you had the right to do something with it. This means that you are in the position to do whatever you want to do with the drug, such as take it, give it to friends, deliver it to someone or even just be holding it for a friend with the intention to give it back to them. If the prosecution cannot prove who within a house or vehicle had exclusive possession or control of the drug then this element cannot be proven.

You must also have the knowledge that the drug is on your person and that it is a drug of dependence. If a friend gives you their bag to hold and there are drugs in there that you do not know about, then you do not have the requisite knowledge required to be guilty of the offence.

How can I be defended for being in possession of a prohibited substance? 

Some common ways your lawyer can help you be found not guilty of the offence of possession of a prohibited substance are by proving you do not meet one of the elements of possession, the substance is not a prohibited substance, you were unaware that it was a prohibited substance, or that you are authorised to be in possession of the substance through the Medicines, Poisons and Therapeutic Goods Act 2008 or another territory law.

Supplying drugs in the ACT

Under section 164 of the Drugs of Dependence Act 1989 (ACT), it is an offence to:

  • Sell or supply a drug of dependence to any person
  • Sell or supply a prohibited substance to any person
  • Participate in the sale or supply of a drug of dependence to any person
  • Participate in the sale or supply of a prohibited substance to any person
  • Possess a drug of dependence for the purpose of sale or supply to any person
  • Possess a prohibited substance for the purpose of sale or supply to any person

The maximum penalty for this offence is 5 years imprisonment. The severity of potential penalties underscores the importance of securing the services of a skilled and knowledgeable lawyer to navigate the complexities of the legal process and ensure the best possible outcome for the accused.

To convict you of supplying drugs, the prosecutor must prove:

  • You sold or supplied a drug of dependence or prohibited substance
  • The substance you sold or supplied was a drug of dependence or prohibited substance
  • You were not authorised to sell or supply the drug of dependence or prohibited substance under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law

Are there any exceptions to selling or supplying a drug of dependence or a prohibited substance?

Yes, if you are selling or supplying a drug of dependence or a prohibited substance and you are authorised under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law, then your actions are lawful. This means that if you have a license or approval to sell or supply the drug or prohibited substance, you cannot be charged under this section.

What is a ‘drug of dependence’?

A drug of dependence is defined in the Drugs of Dependence Act as “a substance prescribed by regulation as a drug of dependence”. Common examples of these substances include, but are not limited to, cocaine, methylamphetamine (meth/ice), methadone, morphine, oxycodone and remifentanil.

What is a ‘prohibited substance’?

A drug of dependence is defined in the Drugs of Dependence Act as “a substance prescribed by regulation as a prohibited substance”. Common examples of these substances include, but are not limited to, cocoa leaf, DMT, heroin or MDMA (ecstasy).

What does it mean to ‘sell or supply’ a drug of dependence or a prohibited substance?

‘Selling’, under the Drugs of Dependence Act, includes offering or exposing the drug or substance for sale. ‘Supplying’, under the Act, includes offering to supply, however does not include administer.

Cultivating more than 4 cannabis plants

Under s171AAA of the Drugs of Dependence Act 1989, it is an offence to cultivate more than 4 cannabis plants at a premises.

The offence requires having more than 4 plants at a premises because having 4 or less cannabis plants in a single household is decriminalised, meaning you cannot be prosecuted and police can only impose a civil infringement or diversion for treatment or counselling.

Things to know: 

  1. Cultivating more than 4 cannabis plants is an offence under s 171AAA of the Drugs of Dependence Act 1989.
  2. This offence carries a maximum penalty of fine of $8,000.00, imprisonment for two years or both.

To convict you of cultivating more than 4 cannabis plants, the prosecutor must prove the following elements beyond a reasonable doubt:

  1. Cultivation:
    • That you cultivated one or more cannabis plants at a premises.
  2. Quantity:
    • More than 4 cannabis plants were being cultivated at the premises.

Your lawyer will analyse the prosecution’s evidence, identify weaknesses in their case, and develop a strategic defence.

What is the legal definition of cultivated?

The Drugs of Dependence Act relied on the definition in the Criminal Code 2002 for defining cultivated. In the Criminal Code, a person cultivates a plant if the person –

  1. Engages in its cultivation; or
  2. Exercises control or direction over its cultivation; or
  3. Provides or arranges finance for its cultivation.

In the Criminal Code, cultivation is defined as including:

  1. Planning a seed, seedling or cutting of the plant or transplanting the plant, or
  2. Nurturing, tending or growing the plant, or
  3. Guarding or concealing the plant (including against interference or discovery by humans or natural predators); or
  4. Harvesting the plant (including picking any part of the plant or separating any resin or other substance from the plant).

What is the legal definition of ‘cannabis’?

Under the Drugs of Dependence Act, cannabis is defined as a cannabis plant, whether living or dead, and includes any flowering or fruiting top, leaf, seed, stalk, or any other part of a cannabis plant and any mixture of parts of a cannabis plant or cannabis plants. This does not include cannabis resin, cannabis fibre or cannabis food products.

Dried cannabis is regarded as cannabis that has been subjected to a drying process under the Act. A cannabis plant means a plant of the Genus Cannabis.

What is the legal definition of ‘premises’?

The Drugs of Dependence Act relies on the definition of premises in the Medicines, Poisons and Therapeutic Goods Act 2008. This definition includes land, a structure, or a vehicle and any part of an area of land, a structure, or a vehicle.

Are there any related or similar charges to this offence?

Yes, there are two other offences relating to the cultivation of cannabis. Under s 171AAB of the Drugs of Dependence Act it is an offence to cultivate a cannabis plant at a place other than where you live. It is also an offence if a person cultivates a cannabis plant and does so in an area lawfully accessible to a member of the public. Both of these offences are punishable by a $13, 750 fine, imprisonment for two years, and sometimes both.

Q: Are there any defences available to me?

A: Yes. A defence is available to you if you can prove that you:

  1. Lived at the premises when cultivating the cannabis; and
  2. Were not aware and could not reasonably have been expected to be aware, that more than 4 cannabis plants were being cultivated at the premises.

Trafficking in a controlled drug

Engaging a specialist criminal defence lawyer and strategy early when facing a charge related to trafficking in a controlled drug is crucial for several reasons. First and foremost, understanding the severity of the offence and potential penalties is essential.

  1. Trafficking in a controlled drug is an offence under s603 of the Criminal Code 2002.
  2. The maximum penalty for this offence is dependent on the amount and type of controlled drug trafficked. It ranges from imprisonment for 3 years (for cannabis) to imprisonment for life for large commercial quantities.
Offence  Maximum Penalty
Trafficking in a large commercial quantity of a controlled drug Imprisonment for life 
Trafficking in a commercial quantity of a controlled drug $687 500 fine, 25 years imprisonment or both
Trafficking in a trafficable quantity of cannabis $275 000 fine, 10 years imprisonment or both
Trafficking in a controlled drug other than cannabis $275 000 fine, 10 years imprisonment or both
Trafficking in cannabis  $82 500 fine, 3 years imprisonment or both

To convict you of trafficking in a controlled drug, the prosecutor must prove the following elements beyond a reasonable doubt:

  1. Trafficking:
    • You were engaged in trafficking activities, which include selling, preparing for sale, transporting, or distributing the controlled drug.
  2. Controlled Drug:
    • The substance involved was a controlled drug as defined by law.
  3. Quantity:
    • The amount of the controlled drug involved met or exceeded the relevant threshold for trafficking as specified in the legislation.

What is the legal definition of ‘cannabis’ under the act?

Under this act, Cannabis is defined as a:

  1. substance consisting of or containing—
    1. the fresh or dried parts of a cannabis plant; or
    2. tetrahydrocannabinol; but
  2. does not include—
    1. goods that consist completely or mainly of cannabis fibre; or
    2. cannabis food products.

A cannabis plant is a plant of the genus Cannabis.

What is a ‘commercial quantity’?

A commercial quantity, under the Criminal Code, means:

  1. for a controlled drug – a quantity of the drug that is not less than the quantity prescribed by regulation as a commercial quantity of the drug; and
  2. for a controlled plant— a quantity of the plant that is not less than the quantity prescribed by regulation as a commercial quantity of the plant; and
  3. for a controlled precursor— a quantity of the precursor that is not less than the quantity prescribed by regulation as a commercial quantity of the precursor.

What is a ‘large commercial quantity’?

A large commercial quantity, under the Criminal Code, means:

  1. for a controlled drug— a quantity of the drug that is not less than the quantity prescribed by regulation as a large commercial quantity of the drug; and
  2. for a controlled plant— a quantity of the plant that is not less than the quantity prescribed by regulation as a large commercial quantity of the plant; and
  3. for a controlled precursor— a quantity of the precursor that is not less than the quantity prescribed by regulation as a large commercial quantity of the precursor.

What is a ‘trafficable quantity’?

A trafficable quantity, under the Criminal Code, means:

  1.  for a controlled drug— a quantity of the drug that is not less than the quantity prescribed by regulation as a trafficable quantity of the drug; and
  2. for a controlled plant— a quantity of the plant that is not less than the quantity prescribed by regulation as a trafficable quantity of the plant.

What does it mean to ‘traffic’ a drug?

A: Trafficking is defined in the Criminal Code as when a person:

  1. Sells the drug; or
  2. Prepares the drug for supply –
  1. With the intention of selling any of it; or
  2. Believing that someone else intends to sell any of it; or
  1. Transports the drug –
  1. With the intention of selling any of it; or
  2. Believing that someone else intends to sell any of it; or
  1. Guards or conceals the drug with the intention of –
    1. Selling any of it; or
    2. Helping someone else to sell any of it; or
  2. Possesses the drug with the intention of selling any of it.

In relation to the definition of trafficking, the definition of transport provided by the act is to deliver.

The definition of conceal includes concealing or disguising the nature, source or location of the thing, any movement of the thing, someone’s rights in relation to the thing, or the identity of any owner of the thing.

The definition of possession includes receiving or obtaining possession of the thing, having control over its disposition (whether or not having custody of the thing), or having joint possession of the thing. Preparing a drug for supply includes packing the drug or separating the drug into discrete units.

The definition of sell includes barter or exchange, given to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise and agree to sell.

The definition of supply includes supply by way of sale or otherwise and agree to supply.

Q: What happens when the controlled drug is a mixture of substances?

Under the Criminal Code the prosecutors are permitted to calculate the amount in relation to the quantity of the drug in the mixture, or the quantity of the mixture as a whole. If the prosecution elects to establish the quantity of the drug in the mixture, then they will work out the relevant category by reference to the quantity (if any) prescribed by regulation for the pure form of the drug. If the prosecution elects to establish the quantity of the mixture instead of the quantity of the drug in the mixture, the relevant quantity of the mixture worked out by reference to the quantity (if any) prescribed by regulation for a mixture containing the drug.

Your lawyer will work to achieve the best possible outcome for you through negotiation, evidence presentation, or courtroom challenges.

Why Choose Hugo Law Group to Defend You

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Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.

Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.

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