By Paul Gregoire and Ugur Nedim
In NSW, the use, possession, supply, cultivation and manufacture of prohibited drugs and/or plants are all crimes. The state offences and penalties relating to prohibited drugs are set out under the provisions of the Drugs Misuse and Trafficking Act (DMT Act) 1985.
Section 10 of the DMT Act outlaws drug possession. Section 12 makes it a crime to self-administer a prohibited substance. Division 1 of the Act also contains the offences of administering drugs to others, letting someone else administer drugs to you, and possessing equipment used to take drugs.
A maximum penalty of 2 years imprisonment and/or a fine of $2,200 applies to each these offences. They are ‘summary offences’, which means they are prosecuted in the Local Court rather than being heard in a higher court such as the District Court.
State regulations and controls regarding medicines, prescribed restricted substances, and poisons are primarily set out in the Poisons and Therapeutic Goods Act 1966. The Act provides that the distribution, prescription and administering of these substances is restricted to qualified and authorised persons.
Section 16 of the Act provides that an individual found in possession of anabolic steroids can face up to 2 years behind bars and/or a fine of $2,200, while those found in unlawful possession of a prescription drug or having forged a doctor’s script can be sent away for 6 months and fined $2,200.
International drug controls
“It’s impossible to understand the history of NSW drug laws without looking internationally,” explained Ben Mostyn, founding member of the UNSW Australian Drug Law Reform Initiative. “The United Nations and the USA have driven the war on drugs by developing the three UN conventions.”
The lawyer outlined that the 1961 Single Convention on Narcotic Drugs is the primary international drug control treaty. It lists a range of restricted drugs under its four schedules. “Of course, little scientific evidence existed in 1961 to support such a scheduling system,” Mr Mostyn added.
The 1971 Convention on Psychotropic Substances was designed to place controls on amphetamines, psychedelics and benzodiazepines. It also contains four schedules of controlled substances. The first schedule being the most restrictive and the fourth being the least.
According to Mostyn, the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, “which Australia is party to, effectively makes it compulsory for countries to criminalise drug possession.”
This convention also contains two tables that list precursor chemicals, reagents and solvents which are frequently used in the manufacture of illicit substances.
Domestic replication of the conventions
Although Australian states and territories are not signatories to these international conventions, and therefore are not bound by their terms, there is a tradition that these jurisdictions should act in accordance with the treaties entered into by the federal government.
And the international drug controls are reflected in the laws set out in the DMT Act.
As Mr Mostyn points out NSW uses “a scheduling system, with one primary schedule.” Schedule 1 of the DMT Act contains a list of around 200 outlawed drugs, prohibited plants, illicit drug precursors and reagents.
NSW supply charges
The NSW scheduling system provides a range of quantities for each illicit substance that has an effect on the charges laid against an individual found in their possession, as well as the penalties they face.
These quantities are broken down into a small quantity, a traffickable amount, an indictable quantity, a commercial amount and a large commercial supply. The applicable weights vary from drug to drug.
But the purity of an illicit substance doesn’t matter in the state regime. Section 4 of the DMT Act contains what’s known as the “admixture provision,” which outlines that a person found in the possession of an illegal drug will be charged with the entire weight of the substance, regardless of its purity.
So, if the total weight of a white powder is 1 kilogram, but analysis finds it’s only 25 percent heroin, a defendant will be charged in respect of 1 kilogram of heroin, not with the 250 grams of pure heroin it contains.
This is different to Commonwealth legislation against drug importation and exportation, where the actual weight of the prohibited substance within the admixture is the relevant quantity for the purposes of the law.
Section 29 of the DMT Act stipulates that if a person is found with more than a traffickable amount of a prohibited drug, they can be found guilty of supply, even if there’s no evidence they were intending to provide the substance to another person. This is known as deemed supply.
So, for example, traffickable amount of cocaine, heroin or amphetamines is 3 grams, while an indictable amount is 5 grams. A case involving the supply of an indictable quantity – whether deemed or an actual supply – must be heard in a District Court and a maximum penalty of 15 years in prison, and/or a fine of $22,000 applies.
A commercial quantity of cocaine is 250 grams. This amount can see an individual imprisoned for up to 20 years and receive a fine of up to $385,000. And a large commercial supply of the drug is 1 kilogram, which comes with a maximum sentence of life imprisonment and/or a fine of $550,000.
Back in April 2000, the NSW government introduced the cannabis cautioning scheme. This means NSW police officers have the discretion to issue a caution to adults found in possession of up to 15 grams of cannabis. And an individual can only be issued with two warnings before charges must be laid.
A 2011 NSW auditor general’s report revealed that over its first ten years, the cannabis cautioning scheme had diverted more than 39,000 minor cannabis offences from the courts. And the auditor general said that cautioned individuals are less likely to reoffend, than those who are charged.
Drug law reform is way overdue
However, like an increasing amount of NSW citizens, Mr Mostyn believes NSW drug laws are outdated and in need of an overhaul. “The entire way we view recreational drug use, problematic drug use, and addictive drug use needs to be reconsidered,” he told Sydney Criminal Lawyers®.
Mr Mostyn questioned the validity of laws that allow a person to be incarcerated for up to 2 years for cannabis or MDMA possession, which he finds is “entirely out of sync with community expectations and the scientific evidence on effective drug treatment.”
The 2016 National Drug Strategy Household Survey found that 74 percent of the Australian population do not support cannabis possession being a criminal offence.
The survey also reveals that 95 percent of the population don’t think people should be sent to prison for cannabis possession, while 87 percent of Australians don’t believe MDMA possession should be a gaolable offence.
And less than 25 percent of the population think people should be put away for being in possession of heroin or methamphetamine.
“The community is way ahead of the politicians on this issue,” Mr Mostyn concluded. It understands “that the criminal justice system is an expensive and ineffective way of dealing with the complicated social problem of drug use and addiction.”