Possession and Sale of Drug Paraphernalia: Knowing the Law

It’s common knowledge that selling illicit drugs or having them in your possession is a criminal offence.

But what about items used to consume drugs such as pipes, bongs and other drug paraphernalia?

With an estimated one-third of all young adults having tried cannabis at some point in their lives, and approximately 300,000 people who smoke it on a daily basis, it’s a natural incidence that bongs and other drug-related equipment are also commonplace.

However, in many cases it is illegal to have these types of items in your possession, even in the absence of any illicit drugs.

In fact, if you are caught with drug paraphernalia, or equipment or instructions for the manufacture of drugs, you could face the same penalties that apply in the case of drug possession.

Equipment used to administer drugs

It is illegal in New South Wales to have any equipment in your possession which can be used to administer drugs.

This encompasses a wide range of items, including ‘bongs’, ‘ice’ pipes, vaporisers and so on.

However, it does not include syringes and needles, which may still be carried legally.

It is also legal to carry any form of equipment which minimises the health risks associated with injecting drugs.

Persons who have a prescription for drugs which are otherwise prohibited (such as methadone) are also exempt from these laws.

Further, certain professionals such as doctors, dentists, veterinarians, pharmacists and nurses are legally allowed to possess equipment used to administer drugs where it is used in the ordinary course of their work.

If you are caught with equipment that may be used to administer drugs and you don’t have a lawful excuse, you could face a maximum penalty of 2 years imprisonment and/or a fine of $2,200.

However, in many cases a good criminal lawyer can fight to have the charges dropped or thrown out of court.

One way to do this is by forcing police to prove ‘exclusive possession’.

To elaborate, where police allege that you are in possession of drug equipment, they must prove beyond a reasonable doubt that you had ‘exclusive possession’ – in other words, that it was not another person that possessed it.

This could be very difficult for police if the equipment was located in an area that others could access.

For example, if police find drug paraphernalia in a lounge room or kitchen of a shared house, a good lawyer will often be able to force police to drop the charges at an early stage by pointing out the obvious – ie advising them that the paraphernalia may have been left there by a visitor or another occupant.

A good lawyer can also push to have charges dropped where police have conducted an illegal search, which is a search that is conducted on a ‘hunch’ rather than a ‘suspicion on reasonable grounds’, which is the legal requirement.

Selling drug paraphernalia

If you are a shopkeeper, you may be charged with a criminal offence if you sell ‘ice pipes’ or ‘waterpipes’ that may be used to consume drugs.

Under the law, an ‘ice pipe’ refers to anything that can be used to consume drugs by smoking or inhaling fumes of burnt crystallised or powdered drugs.

A ‘waterpipe’ is a device that can be used to consume drugs by inhaling fumes through water or other liquids.

Ice pipes, crack pipes and bongs are all covered under these definitions.

It’s also important to remember that items will still be considered ‘ice pipes’ and ‘waterpipes’ even if they require modification, adjustments or additions in order to function – so there’s sometimes not much point in trying to conceal the true purpose of drug equipment.

Most importantly, you cannot raise a defence by contending that the paraphernalia was intended to be used for a purpose other than for the consumption of illicit drugs.

To be found guilty, the prosecution must prove that you operated a shop or stall, or that you sold the paraphernalia near and in connection with a shop.

They must also prove that you sold or supplied the paraphernalia in connection with a commercial transaction – this is usually proved by showing that you received cash or some other form of financial benefit in exchange for the items in question.

The maximum penalty for this offence is also a fine of $2,200 and/or imprisonment for 2 years.

Possessing tools or instructions for creating drugs

Finally, you may be charged for possessing tools or instructions for creating drugs.

Examples of tools which may be used to create drugs include pill presses and drug encapsulators.

It is also illegal to possess instructions for how to manufacture or produce illicit drugs, unless you are able to prove that you had a licence or authority to manufacture or produce the drugs in question, or that you had the instructions or tools for some lawful purpose.

Where it is alleged that you actually took part in the drug manufacturing process, you may face the more serious charge of drug manufacturing, which carries heavier penalties depending on the amount and type of drug manufactured.

Again, these offences carry a maximum penalty of 2 years’ imprisonment and/or a $2,200 fine.

Where to from here?

Except for drug manufacturing, each of the above offences is a ‘summary offence’ which means that they are heard in the Local Court before a Magistrate, rather than before a Judge in a Higher Court such as the District Court.

The penalties which apply for these types of offences are towards the lower end of the scale, however there is still the potential for them to result in a criminal record, which may affect your work and travel plans.

However, with the help of our drug law specialists, you can fight the allegations and avoid a conviction or a harsh penalty.

We may be able to help you avoid a criminal record even if you wish to plead guilty!

As a specialist drug law firm, our experts understand the intricacies of the law and can help identify any weaknesses in the police case and any defences you may have.

So get our experts on your side and take the first steps towards avoiding a conviction.

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