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Drugs: Small Quantities and the Law

Introduction

When it comes to drugs and the law, behaviour is grouped into a number categories. These relate to the type and amount of the substance in question, and the type of activity involved.

The other important distinction is between offences of possession and offences of dealing, or supply. The information below examines two particular aspects of drug law:

• Low level Drug Possession
• Low Level Dealing

Different types of drugs

Almost 250 plants and drugs are prohibited by law in NSW (the relevant Act is the Drug Misuse and Trafficking Act 1985 (NSW)). Some of these are referred to by their common names, such as heroin, cocaine and cannabis, while some have technical names that are almost un-pronounceable, such as 3,4-Methylenedioxymethylamphetamine (more commonly known as ecstasy).

Possession

“Possession” of any one of these almost 250 substances is an offence. As simple as this sounds, there are three technical legal questions that must be answered in order to determine possession.

• Was the substance a Prohibited Drug?
  This is answered by scientific analysis which concludes with the issuing of a certificate from the Analytical Laboratories operated by the government.



• Did the accused have physical control over the substance?
  This is not as simple as it sounds. A person does not need to have something in their pocket before possession can be proved. Possession can be de facto or actual, and can be joint or independent.



• Did the person have knowledge of the substance in their possession?
  As with all criminal offences, this mental element must also be satisfied.

The best summary of these elements comes from a famous legal judgement which states that possession arises where the substance is “to one's own knowledge, physically in one's custody, or under one's physical control”.

Quantities of Drug and Severity of Offence

Offences relating to possession revolve around the quantity of drug:

• Small quantity
• Trafficable quantity
• Indictable quantity
• Commercial quantity
• Large commercial quantity

This table outlines some of the more ”common” drugs listed in the legislation.

How much of a Drug makes the Offence Serious?

Indictable offences are serious (and dealt with in the District and Supreme courts), while summary offences are regarded as minor (and dealt with in the Local Court).

• Summary offences involve “small quantities” of Drugs.
• If a person is caught with either a “trafficable quantity” or an “indictable quantity”, the police can elect to charge them with an indictable offence, but unless this election is made, these quantities are dealt with as summary offences.
• Commercial quantities always involve indictable offences.

Police Power to Stop and Search

Although this power is not specifically a “drug” matter, the fact is that Police powers of search have increased dramatically in recent years. Most people will be aware by now of the introduction of authorisation to use drug-sniffer dogs into public places. When these powers are added to the very basic elements of possession and quantity outlined above, the implications become grave for persons contemplating carrying a prohibited substance around in their pocket or back-pack.

Low Level Dealing

In legal terms, dealing is known as Supply. Courts generally regard supply very seriously, however, if the quantity of substance is equal to or less than the defined “small quantity” there are reduced penalties. Even with the reduced penalties, a person can still be sentenced to a maximum of 2 years in gaol, or receive a fine of up to $2200.

When does a small drug offence go to court?

If Police believe a small (or summary) offence has been committed, they can commence proceedings and this can happen in three ways.

• laying charges;
• issuing a Court Attendance Notice (CAN); or
• issuing a Field Court Attendance Notice (FCAN); and
• issuing a summons.

The exact details of each of these is not important. It is enough to say that if any of these options is employed against a person then that person will end up in front of a magistrate in the local court.

What about a Lawyer?

Clearly, if there are four different roads to Court, there are lots potholes and traps to be avoided. It is therefore crucial to seek good legal advice. If you receive a CAN, FCAN, summons or are charged, the very first thing to do is to get some legal advice. If you intend to plead not guilty, the importance of legal representation increases dramatically. The Courts can be confusing and daunting. A lawyer can be your guide to help gain the best possible outcome in the circumstances.

The outcome of all this will depend on the circumstances; obviously, the more severe an offence the more severe the penalty. The courts do not treat drug offences lightly, and nor should anyone who is ordered to appear in court accused of drug offences. Even the low level offences can result in gaol terms. Of course, there is also the choice between pleading guilty and not guilty, but even each of these will have different outcomes depending on circumstances.

So, if trouble arises: Stay calm, don't panic, call a lawyer and work carefully towards figuring out how you wish to proceed in the legal process.

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