Drug Offences in WA

Possess/use a prohibited drug

  • Possess/use a prohibited drug is an offence under section 6(2) of the Misuse of Drugs Act 1981 (WA).
  • This offence is strictly summary. It commences and will be finalised in the Magistrates Court. The maximum penalty is two years imprisonment and/or $2000.00.
  • If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded.
  • A lawyer can provide invaluable support and guidance if you’re facing charges related to the possession or usage of a prohibited drug. They can offer expert legal advice tailored to your specific situation, help navigate the complexities of the legal system, and advocate for your rights throughout the legal proceedings.

If you have been charged with possessing or using a prohibited drug, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person alleged to have committed the offence
  2. You had in your possession or you used a prohibited drug
  3. You did not have any lawful authorisation to have possession of the drug

What does it mean by ‘prohibited drug’?

‘Prohibited drug’ is defined under section 4 as:

  1. drugs of addiction; and
  2. specified drugs; and
  3. whether or not they are also drugs of addiction or specified drugs, the drugs specified in Schedule I.

What does ‘possess’ mean?

‘Possess’ is defined under section 3 which includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb “to possess” have correlative meanings.

Possession can mean that the accused is physically in possession of the substance or that the substance is otherwise in his or her control or under his or her dominion.

At least where the substance was not in the accused’s immediate physical possession, the State must prove beyond reasonable doubt that the accused intended to control or have dominion over it.

There can be joint possession of a prohibited drug.

What is required for ‘knowledge’?

The notion of possession, in its ordinary meaning, involves a mental element. It comprehends some degree of knowledge of the thing possessed.

First, the Prosecution must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing.

Secondly, the Prosecution must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was ‘a prohibited drug’.

Thirdly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge.

Finally, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.

Q. If I plead guilty or am found guilty of possessing or using a prohibited drug, will a conviction be recorded?

A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to a charge of possessing/using a prohibited drug?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed the offence
  • whether you possessed or used a prohibited drug
  • whether you had knowledge that you possessed a prohibited drug
  • whether you were acting under lawful authorisation

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of possessing or using a prohibited drug?

A. Though imprisonment is not a likely outcome for an offence of possessing or use of a prohibited drug and there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for possessing or using a prohibited drug is 2 years imprisonment; however, the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history, and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol.

Possession of a Prohibited Drug with Intent to Sell or Supply to Another

  • Possession of a prohibited drug with intent to sell or supply is an offence under section 6(1)(a) of the Misuse of Drugs Act 1981, a Schedule II offence.
  • Depending on the quantity of the prohibited drug, this charge can be dealt with in either the Magistrates Court or the District Court.
  • Some of the prohibited drugs are strictly indictable offences. For those matters, the proceedings must be finalised in the District Court but still commence in the Magistrates Court.
  • If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded.

If you have been charged with possession of a prohibited drug with intent to sell or supply, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person alleged to have committed the offence
  2. You had in your possession a substance
  3. The substance you had in your possession was a prohibited drug
  4. That you had the intention to sell or supply the substance or any part of it you had in your possession

In cases of possession of a prohibited drug with intent to sell or supply, the quantity of the drug can be a significant factor in determining the seriousness of the offence and the potential penalties involved. A prosecutor may try to prove that larger quantities of the prohibited substance indicate an intention to engage in drug trafficking or distribution, which can lead to more severe legal consequences.

This table outlines the quantities of various drugs or plants that determine whether charges under specific sections of the law are triable in the Magistrates Court or higher courts. The table includes substances such as amphetamine, cannabis, cocaine, heroin, LSD, and others, along with their respective thresholds.

Drug/Plant Charges under s6(1) or 7(1) are triable in the Magistrates Court if less than amount
Amphetamine (Speed) 4 grams
Cannabis 500 grams
Cannabis resin 40 grams
Cannabis plant 20 plants
Cannabis cigarettes 400 cigarettes (any portion in each)
Cocaine 4 grams
Dexamphetamine 6 grams
Heroin (Diacetylmorphine) Not listed – see note below
Lysergic Acid Diethylamide (LSD) 0.004 grams
Methylamphetamine (Ice) 4 grams
MDA, MDMA(Ecstasy) 4 grams
Psilocybin (Magic Mushroom derivative) 0.3 grams

A lawyer’s expertise and advocacy are essential in defending against charges of possession of a prohibited drug with intent to sell or supply, as a good lawyer can mount a robust defence against the prosecution’s case in several ways.

What are the maximum penalties for possession of a prohibited drug with intent to sell or supply to another?

The maximum penalties for possession of a prohibited drug with intent to sell or supply to another, are categorised by the type of drug. The penalties vary depending on the specific substance involved. For cannabis, the maximum penalty is 10 years imprisonment and/or a fine of $20,000. For trafficable methylamphetamine, commonly known as “Ice,” the maximum penalty is life imprisonment. For any other drug, the maximum penalty is 25 years imprisonment and/or a fine of $100,000.

What happens if the prosecutor applies for a person to be declared a ‘drug trafficker/?

The prosecution may apply for a person to be declared a ‘drug trafficker’ where the person is convicted of:

  • a “serious drug offence” and the offence is in respect of a quantity equal to or greater than the amount specified in Sch VII or VIII;
Drug/Plant Trafficking if equal to or greater than amount
Amphetamine (Speed) 28 grams
Cannabis 3 kilograms
Cannabis resin 100 grams
Cannabis plant 20 plants
Cannabis cigarettes Not listed
Cocaine 28 grams
Dexamphetamine Not listed
Heroin (Diacetylmorphine) 28 grams (listed as Diacetylmorphine)
Lysergic Acid Diethylamide (LSD) 0.01 grams
Methylamphetamine (Ice) 28 grams
MDA, MDMA(Ecstasy) 28 grams
Psilocybin (Magic Mushroom derivative) Not listed

or;

  • the person was convicted of two or more “serious drug offences” or “external serious drug offences” within 10 years prior tothe commission of the current offence; or
  • a “relevant drug offence” and the person was a member of a declared criminal organisation at the time of commission of the offence.

specialised trafficker defence lawyer possesses in-depth knowledge and experience in defending clients facing drug trafficking allegations.

What does ‘possess’ mean?

‘Possess’ is defined under section 3 which includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb “to possess” have correlative meanings.

Possession can mean that the accused is physically in possession of the substance or that the substance is otherwise in his or her control or under his or her dominion.

At least where the substance was not in the accused’s immediate physical possession, the Prosecution must prove beyond reasonable doubt that the accused intended to control or have dominion over it.

There can be joint possession of a prohibited drug.

How does the law presume intent to sell or supply prohibited drugs, and what quantities trigger this presumption according to Schedule V?

Unless the contrary is proved, you are deemed to have in your possession a prohibited drug with intent to sell or supply it to another if you have in your possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug.

Drug/Plant Presumed intent to sell or supply if equal to or greater than amount
Amphetamine (Speed) 2 grams
Cannabis 100 grams
Cannabis resin 20 grams
Cannabis plant 10 plants
Cannabis cigarettes 80 cigarettes (any portion in each)
Cocaine 2 grams
Dexamphetamine 2 grams
Heroin (Diacetylmorphine) 2 grams
Lysergic Acid Diethylamide (LSD) 0.002 grams
Methylamphetamine (Ice) 2 grams
MDA, MDMA(Ecstasy) 2 grams
Psilocybin (Magic Mushroom derivative) 0.1 grams

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to possession of a prohibited drug with intent to sell or supply to another?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed an offence
  • whether you accept that you possessed a prohibited drug
  • whether you intended to sell or supply the prohibited drug

You may accept that you committed an offence but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as simple possession of a prohibited drug.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of this charge?

A. Although there are many sentencing alternatives, you are likely to go to jail if you plead guilty or are found guilty.

The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history, and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Manufacture or Prepare a Prohibited Drug

  • Manufacture or prepare a prohibited drug is an offence under section 6(1)(b) of the Misuse of Drugs Act 1981 (WA).  This offence is a Schedule II offence.
  • Depending on the quantity of the prohibited drug, this charge can be dealt with in either the Magistrates Court or the District Court.
  • Some of the prohibited drugs fall into the category of a strictly indictable offence. The offence must be finalised in the District Court, but still commences in the Magistrates Court.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

If you have been charged with manufacturing or preparing a prohibited drug, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person alleged to have committed the offence
  2. The drug is a prohibited drug
  3. That you manufactured/prepared a prohibited drug

This table outlines the quantities of various drugs or plants that determine whether charges under specific sections of the law are triable in the Magistrates Court or higher courts. It includes substances such as amphetamine, cannabis, cocaine, LSD, and others, along with their respective thresholds. For example, charges related to amphetamine are triable in the Magistrates Court if the quantity is less than 4 grams, while for cannabis, it’s 500 grams.

Drug/Plant Charges under s6(1) or 7(1) are triable in the Magistrates Court if less than amount
Amphetamine (Speed) 4 grams
Cannabis 500 grams
Cannabis resin 40 grams
Cannabis plant 20 plants
Cannabis cigarettes 400 cigarettes (any portion in each)
Cocaine 4 grams
Dexamphetamine 6 grams
Heroin (Diacetylmorphine) Not listed – see note below
Lysergic Acid Diethylamide (LSD) 0.004 grams
Methylamphetamine (Ice) 4 grams
MDA, MDMA(Ecstasy) 4 grams
Psilocybin (Magic Mushroom derivative) 0.3 grams

What are the maximum penalties associated with the charge?

The maximum penalties for charges related to possession of prohibited drugs with intent to sell or supply vary depending on the type of drug involved. For cannabis, the maximum penalty is 10 years imprisonment and/or a fine of $20,000. For trafficable methylamphetamine, commonly known as “Ice,” the maximum penalty is life imprisonment. In cases involving any other prohibited drug not specifically listed, the maximum penalty is 25 years imprisonment and/or a fine of $100,000. These penalties reflect the severity of the offence and aim to deter individuals from engaging in drug-related activities.

What is defined as a trafficable quantity of a prohibited drug and what happens if the prosecutor applies for a declaration of ‘drug trafficker’?

The prosecution may apply for a person to be declared a “drug trafficker” where the person is convicted of:

  • a “serious drug offence” and the offence is in respect of a quantity equal to or greater than the amount specified in Sch VII or VIII;
Drug/Plant Trafficking if equal to or greater than amount
Amphetamine (Speed) 28 grams
Cannabis 3 kilograms
Cannabis resin 100 grams
Cannabis plant 20 plants
Cannabis cigarettes Not listed
Cocaine 28 grams
Dexamphetamine Not listed
Heroin (Diacetylmorphine) 28 grams (listed as Diacetylmorphine)
Lysergic Acid Diethylamide (LSD) 0.01 grams
Methylamphetamine (Ice) 28 grams
MDA, MDMA(Ecstasy) 28 grams
Psilocybin (Magic Mushroom derivative) Not listed

or;

  • the person was convicted of two or more “serious drug offences” or “external serious drug offences” within 10 years prior to the commission of the current offence; OR
  • a “relevant drug offence” and the person was a member of a declared criminal organisation at the time of commission of the offence.

A skilled attorney’s expertise and advocacy can significantly improve the defendant’s chances of minimising the penalties associated with trafficking charges.

What does ‘manufacture’ mean?

To make up or bring (raw material, ingredients, etc.) into a form suitable for use; to work up as or convert into a specified product.

Q. If I plead guilty or am found guilty of manufacturing or preparing a prohibited drug, will a conviction be recorded?

A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to manufacturing or preparing a prohibited drug?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed an offence
  • whether you accept the drug was a prohibited drug
  • whether you accept that you manufactured or prepared the prohibited drug

You may accept that you committed an offence but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as simple possession of a prohibited drug.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of this charge?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The type of sentence you receive will depend on the facts of your case, your personal circumstances, your criminal history, and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Sell or supply, or offer to sell or supply, a prohibited drug to another

  • Sell or supply, or offer to sell or supply, a prohibited drug to another is an offence under section 6(1)(c) of the Misuse of Drugs Act 1981 (WA).  This offence is a Schedule II offence.
  • Depending on the quantity of the prohibited drug, this charge can be dealt with in either the Magistrates Court or the District Court.
  • Some of the prohibited drugs fall into the category of a strictly indictable offence. The offence must be finalised in the District Court, but still commences in the Magistrates Court.
  • If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded.

What is an ‘offer’?

An offer must be a serious offer to sell, intended to be taken seriously by the person it is made to.

Where a person is charged with offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), it is not necessary for the prosecution to prove that the accused actually intended to sell or supply the prohibited drug. The relevant intention is the accused’s intention that the offeree regard the offer as genuine.

What does ‘sell’ and ‘supply’ mean?

The words ‘to sell’ are used in their ordinary meaning of to exchange for money.

To ‘supply’ includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied. An intention to return the drugs to the person who supplied them to you is an intention to supply.

If you have been charged with selling or supply, or offer to sell or supply, a prohibited drug to another, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person alleged to have committed the offence
  2. You sold or supplied or offered to sell or supply something
  3. That what you sold or supplied or offered to sell or supply was a prohibited drug

The prosecutor may use this table of quantities as a reference point to assess the severity of the alleged offense and determine the appropriate charges to bring against the accused. They could argue that the quantity of the prohibited drug found in possession of the accused exceeds the thresholds specified in the table, thus warranting more serious charges or a trial in higher courts. Conversely, if the quantity falls below the specified thresholds, the prosecutor may opt for charges triable in the Magistrates Court, which could result in a less severe penalty upon conviction.

Drug/Plant Charges under s6(1) or 7(1) are triable in the Magistrates Court if less than amount
Amphetamine (Speed) 4 grams
Cannabis 500 grams
Cannabis resin 40 grams
Cannabis plant 20 plants
Cannabis cigarettes 400 cigarettes (any portion in each)
Cocaine 4 grams
Dexamphetamine 6 grams
Heroin (Diacetylmorphine) Not listed – see note below
Lysergic Acid Diethylamide (LSD) 0.004 grams
Methylamphetamine (Ice) 4 grams
MDA, MDMA(Ecstasy) 4 grams
Psilocybin (Magic Mushroom derivative) 0.3 grams

What is the maximum penalties if convicted of selling or supplying or offering to sell or supply, a prohibited drug to another?

If convicted of selling, supplying, or offering to sell or supply cannabis, the maximum penalty is 10 years imprisonment and/or a fine of $20,000. For trafficable methylamphetamine, commonly known as “Ice,” the maximum penalty is life imprisonment. In cases involving any other prohibited drug not specifically listed, the maximum penalty is 25 years imprisonment and/or a fine of $100,000.

What happens if the prosecutor applies for a ‘drug trafficker’ declaration?

Drug trafficking charges can have severe consequences, including lengthy prison sentences, substantial fines, and lasting repercussions on one’s personal and professional life. A specialised trafficker lawyer possesses in-depth knowledge and experience in defending clients facing drug trafficking allegations.

The prosecution may apply for a person to be declared a “drug trafficker” where the person is convicted of:

  • a “serious drug offence” and: h the offence is in respect of a quantity equal to or greater than the amount specified in Sch VII or VIII;
Drug/Plant Trafficking if equal to or greater than amount
Amphetamine (Speed) 28 grams
Cannabis 3 kilograms
Cannabis resin 100 grams
Cannabis plant 20 plants
Cannabis cigarettes Not listed
Cocaine 28 grams
Dexamphetamine Not listed
Heroin (Diacetylmorphine) 28 grams (listed as Diacetylmorphine)
Lysergic Acid Diethylamide (LSD) 0.01 grams
Methylamphetamine (Ice) 28 grams
MDA, MDMA(Ecstasy) 28 grams
Psilocybin (Magic Mushroom derivative) Not listed

or;

  • the person was convicted of two or more “serious drug offences” or “external serious drug offences” within 10 years prior to commission of current offence; OR
  • a “relevant drug offence” and the person was a member of a declared criminal organisation at the time of commission of the offence.

Q. If I plead guilty or am found guilty of selling or supplying or offering to sell or supply a prohibited drug to another, will a conviction be recorded?

A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to selling or supplying or offering to sell or supply a prohibited drug to another?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed an offence
  • whether you accept the drug was a prohibited drug
  • whether you accept that you sold or supplied, or offered to sell or supply, the prohibited drug

You may accept that you committed an offence but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as simple possession of a prohibited drug.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of the charge?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history, and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Possess/Cultivate a Prohibited Plant

  • Possess/cultivates a prohibited plant is an offence under section 7(2) of the Misuse of Drugs Act 1981 (WA).
  • This offence is a strictly summary offence. It commences and will be finalised in the in the Magistrates Court. The maximum penalty is 2 years imprisonment and/or a fine of $2000.00.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

If you have been charged with possessing or cultivating a prohibited plant, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person alleged to have committed the offence
  2. You had in your possession, or you cultivated a prohibited plant
  3. You did not have any lawful authorisation to have possession of the plant

What is a ‘prohibited drug’?

‘Prohibited plant’ is defined under section 4 as:

  1. Plants from which a drug of addiction may be obtained, derived or manufactured; and
  2. whether or not they are also drugs of addiction, the drugs specified in Schedule II.

What does it mean to ‘possess’?

‘To possess’ is defined under section 3 which includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb “to possess” have correlative meanings.

Possession can mean that the accused has physical possession of the substance/thing or has the substance otherwise in his or her control or under his or her dominion.

At least where the substance/thing was not in the accused’s immediate physical possession, the State must prove beyond reasonable doubt that the accused had an intention to control or have dominion over the substance.

There can be joint possession of a prohibited drug.

What ‘knowledge’ is required?

The notion of possession, in its ordinary meaning, involves a mental element. It comprehends some degree of knowledge of the thing possessed.

First, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing.

Secondly, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was ‘a prohibited plant’.

Thirdly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific plant the subject of the charge.

Finally, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.

Q. If I plead guilty or am found guilty of possessing or cultivating a prohibited plant, will a conviction be recorded?

A. It is likely that the court will record a conviction, however, a skilled criminal defence lawyer’s negotiation tactics and advocacy can significantly influence the outcome of your case, potentially leading to a more favourable conviction or reduced penalties. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to possessing or cultivating a prohibited plant??

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed the offence
  • whether you possessed or used a prohibited drug
  • whether you had knowledge that you possessed a prohibited drug
  • whether you were acting under lawful authorisation

You may accept that you committed an offence but:

  • you may disagree with part of what the police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of the charge?

A. Though imprisonment is not a likely outcome for an offence of possessing or using a prohibited drug and there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for possessing or cultivating a prohibited plant is two years imprisonment; however, the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history, and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol.

Possession or Cultivation of a Prohibited Plant with Intent to Sell or Supply to Another

  • Possession or cultivation of a prohibited plant with intent to sell or supply to another is an offence under section 7(1)(a) of the Misuse of Drugs Act 1981.  This offence is a Schedule II offence.
  • Depending on the quantity of the prohibited plant, this charge can be dealt with in either the Magistrates Court or the District Court.
  • The maximum penalty in the District Court for an offence under this section is 25 years and/or a fine of $100,000.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

What does ‘cultivate’ mean?

In relation to a prohibited plant includes to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest the prohibited plant’.

What does ‘intent to sell or supply’ mean?

Intent to sell or supply to another refers to the purpose or aim of possessing a prohibited drug or plant with the intention of transferring it to another person for either financial gain or other reasons. It involves the planning or preparation to distribute the substance to someone else, whether through actual sale, exchange, or provision without monetary transaction.

If you have been charged with possession of a prohibited plant with intent to sell or supply, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person alleged to have committed the offence
  2. The plant was a prohibited plant
  3. You knew or believed that the plant was a prohibited plant
  4. You cultivated the prohibited plant
  5. That you had the intention to sell or supply the prohibited plant or any part of it to another

The prosecutor may use the quantity table to establish the severity of the alleged offence of possessing or cultivating a prohibited plant with intent to sell or supply. By demonstrating that the quantity of the prohibited plant involved exceeds the thresholds outlined in the table, the prosecutor can argue for more serious charges and potentially harsher penalties.

Drug/Plant Charges under s6(1) or 7(1) are triable in the Magistrates Court if less than amount
Amphetamine (Speed) 4 grams
Cannabis 500 grams
Cannabis resin 40 grams
Cannabis plant 20 plants
Cannabis cigarettes 400 cigarettes (any portion in each)
Cocaine 4 grams
Dexamphetamine 6 grams
Heroin (Diacetylmorphine) Not listed – see note below
Lysergic Acid Diethylamide (LSD) 0.004 grams
Methylamphetamine (Ice) 4 grams
MDA, MDMA(Ecstasy) 4 grams
Psilocybin (Magic Mushroom derivative) 0.3 grams

What happens if the prosecutor applies for a ‘drug trafficker’ declaration?

The prosecution may apply for a person to be declared a “drug trafficker” where the person is convicted of:

  • a “serious drug offence” and the offence is in respect of a quantity equal to or greater than the amount specified in Sch VII or VIII; OR
  • the person was convicted of two or more “serious drug offences” or “external serious drug offences” within 10 years prior to commission of current offence; OR
  • a “relevant drug offence” and the person was a member of a declared criminal organisation at the time of commission of the offence.

This table outlines the quantities of various drugs or plants that may trigger a prosecution’s application for a “drug trafficker” declaration. If the quantity of the prohibited drug involved in the offence equals or exceeds the amounts specified in the table, the prosecution may apply for the individual to be declared a “drug trafficker.” For instance, if an individual is convicted of a serious drug offence involving 28 grams or more of amphetamine (speed), cannabis, cocaine, methylamphetamine (ice), or MDMA (ecstasy), the prosecution may seek a “drug trafficker” declaration. Additionally, if the individual has prior convictions for two or more serious drug offences within 10 years, or if they were a member of a declared criminal organization at the time of the offence, the prosecution may also apply for such a declaration. This table provides guidance for prosecutors to assess eligibility for “drug trafficker” declarations based on the quantity and nature of the drug offences committed.

Drug/Plant Trafficking if equal to or greater than amount
Amphetamine (Speed) 28 grams
Cannabis 3 kilograms
Cannabis resin 100 grams
Cannabis plant 20 plants
Cannabis cigarettes Not listed
Cocaine 28 grams
Dexamphetamine Not listed
Heroin (Diacetylmorphine) 28 grams (listed as Diacetylmorphine)
Lysergic Acid Diethylamide (LSD) 0.01 grams
Methylamphetamine (Ice) 28 grams
MDA, MDMA(Ecstasy) 28 grams
Psilocybin (Magic Mushroom derivative) Not listed

specialised trafficker defence lawyer possesses in-depth knowledge and experience in defending clients facing drug trafficking allegations. They understand the intricacies of drug trafficking laws, evidence-collection procedures, and prosecution strategies. Additionally, they have established relationships with experts who can provide valuable insights into drug trafficking cases, such as forensic analysts and investigators. By leveraging their expertise and resources, a specialised trafficker lawyer can mount a robust defence tailored to the specific circumstances of the case.

How is a presumption of intent to sell or supply a prohibited plant established, and what are the specific quantities that trigger this presumption for various drugs or plants?

Unless the contrary is proved, you are deemed to have in your possession a prohibited plant with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug that is not less than the quantity specified in Schedule V in relation to the prohibited plant.

Drug/Plant Presumed intent to sell or supply if equal to or greater than amount
Amphetamine (Speed) 2 grams
Cannabis 100 grams
Cannabis resin 20 grams
Cannabis plant 10 plants
Cannabis cigarettes 80 cigarettes (any portion in each)
Cocaine 2 grams
Dexamphetamine 2 grams
Heroin (Diacetylmorphine) 2 grams
Lysergic Acid Diethylamide (LSD) 0.002 grams
Methylamphetamine (Ice) 2 grams
MDA, MDMA(Ecstasy) 2 grams
Psilocybin (Magic Mushroom derivative) 0.1 grams

Q. If I plead guilty or am found guilty of possession or cultivation of a prohibited plant with intent to sell or supply to another, will a conviction be recorded?

A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to a charge of possession or cultivation of a prohibited plant with intent to sell or supply to another?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed an offence
  • whether you accept that you possessed a prohibited plant
  • whether you intended to sell or supply the prohibited plant

You may accept that you committed an offence but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as simple possession of a prohibited plant.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of the criminal charge?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history, and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Possess any drug paraphernalia in or on which there is a prohibited drug or prohibited plant

  • Possess/cultivates a prohibited plant is an offence under section 7B(6) of the Misuse of Drugs Act 1981 (WA).
  • This offence is strictly summary. It commences and will be finalised in the Magistrates Court. The maximum penalty is three years imprisonment and/or a fine of $36,000.00.
  • If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded.

If you have been charged with possessing or using a prohibited drug, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person alleged to have committed the offence
  2. You had in your possession drug paraphernalia
  3. In or on the drug paraphernalia is a prohibited drug or plant

What is ‘drug paraphernalia’?

‘Drug paraphernalia’ is defined in s7B(1) as:

  1. any thing made or modified to be used in connection with manufacturing or preparing a prohibited drug or a prohibited plant:
    1. for administration to a person; or
    2. for smoking, inhaling or ingesting by a person; or
    3. to be burned or heated so its smoke or fumes can be smoked or inhaled by a person; or
  2. any thing made or modified to be used by a person:
    1. to administer a prohibited drug or a prohibited plant to a person; or
    2. to smoke, inhale or ingest a prohibited drug or a prohibited plant; or
    3. to smoke or inhale the smoke or fumes resulting from burning or heating a prohibited drug or a prohibited plant.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. A criminal defence lawyer can provide invaluable assistance if you’re facing charges related to possessing any drug paraphernalia in or on which there is a prohibited drug or prohibited plant. While it is likely that the court will record a conviction, the type of sentence you receive will depend on the facts of your case, your personal circumstances, your criminal history and many other factors.

Q. Should I plead guilty to possessing any drug paraphernalia in or on which there is a prohibited drug or prohibited plant?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed the offence
  • whether you possessed drug paraphernalia
  • whether you knew that there was prohibited drugs or plants on the drug paraphernalia

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of 

A. Though imprisonment is not a likely outcome for an offence of possessing or using a prohibited drug and there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for possessing or using a prohibited drug is 2 years imprisonment; however, the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history, and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol.

Why Choose Hugo Law Group to Defend You

Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.

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.

Contact

At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.

Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.

Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.

As leaders in criminal defence, we know that every story has two sides. We defend yours.

Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), or 08 6255 6909 (Perth) and find out how we can help you.