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Possessing Relevant Substances Or Things – S9a Drugs Misuse Act

Potts Lawyers > Drug Charges > Possessing Relevant Substances Or Things – S9a Drugs Misuse Act

The following drug charge article was written by a practicing criminal lawyer with experience in drug charges. For information on other drugs charges, visit our Drug Charges home page.

What the law says

Section 9A(1) of the Drug Misuse Act 1986 states:

A person who unlawfully possesses a relevant substance or thing commits a crime.

Section 9A(2) sets out the meaning of “relevant substance or thing” as:

  • (a) a substance that is, or contains, a controlled substance and the gross weight of the relevant substance is of, or exceeds, the gross weight specified in the Drugs Misuse Regulation 1987, schedule 8A in respect of the relevant substance; or
  • (b) substances that together are, or contain, a controlled substance and the total gross weight of the relevant substances is of, or exceeds, the total of the gross weights specified in the Drugs Misuse Regulation 1987, schedule 8A in respect of the relevant substances; or
  • (c) a thing specified in the Drugs Misuse Regulation 1987, schedule 8B.

The meaning of  “controlled substance” is set out in section 4 of the act as:

  • (a) a substance specified in the Drugs Misuse Regulation 1987, schedule 6; or
  • (b) a salt, derivative or stereo-isomer of a substance specified in the Drugs Misuse Regulation 1987, schedule 6; or
  • (c) a salt of a derivative or stereo-isomer of a substance specified in the Drugs Misuse Regulation 1987, schedule 6;

but does not include a compound consisting of a substance specified in the Drugs Misuse Regulation 1987, schedule 6 and of a substance not specified in the Drugs Misuse Regulation 1987, schedule 6.

The “things specified” in schedule 8B are:

  1. condenser
  2. distillation head
  3. heating mantle
  4. manual or mechanical pill press, including a pill press under repair, a modification of a pill press and parts for a pill press
  5. rotary evaporator
  6. reaction vessel, including a reaction vessel under repair or a modification of a reaction vessel; and
  7. splash head, including a splash head under repair or parts for a splash head

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

  1. The accused had in his or her possession. Possession means physical control or custody. You do not possess a thing unless you actually exercise dominion over it.
  2.  That it is a “relevant substance or thing” as defined in the Drugs Misuse Act and Regulations.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

Maximum penalty

The maximum penalty is 15 years imprisonment.

Which court will hear the matter

Under section 13 of the Drugs Misuse Act 1986 certain (less serious with maximum penalties of less than 15 years) offences can be dealt with summarily in the Magistrates Court.

This offence will therefore be dealt with in the Magistrates Court or in the Supreme Court at the election of the Defence

Possible defences

Possible defences to this offence include but are not limited to:

  1. Not having sufficient control of the thing to constitute possession;
  2. That the thing is not a “relevant substance or thing” as defined in the Act and Regulations.
  3. Mistaken identity
  4. Duress
Maximum Penalty

The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and

Is of or exceeds the quantity specified in schedule 4.

25 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and

Is of or exceeds the quantity specified in schedule 3 but is less than the quantity specified in schedule 4; and

The accused satisfies the Court that they were a drug dependent person at the time of committing the offence.

20 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and

Is of or exceeds the quantity specified in schedule 3 but is less than the quantity specified in schedule 4; and

The accused does not satisfy the Court that they were a drug dependent person at the time of committing the offence.

25 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 2; and

Is of or exceeds the quantity specified in schedule 3.

20 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1 or 2; and

Is less than the quantity specified in schedule 3.

15 years imprisonment

Who is a drug dependent person?

A drug dependent person is someone who, as a result of repeated drug use, demonstrates impaired control or drug-seeking behaviour that suggests impaired control over their continued use of the drug.

They also suffer, or are likely to suffer, mental or physical distress or disorder, when the drug use ceases.

What are the quantities in Schedules 3 and 4?

The specified quantities listed in schedules 3 and 4 of the Drugs Misuse Regulation are relevant to the penalty (see above).

Some examples of schedules 3 and 4 quantities include:-

Schedule 1 drugs

Drug Schedule 3 Schedule 4
Amphetamine 2.0g 200g
Cocaine 2.0g 200g
Lysergide (LSD) 0.004g 0.4g
Methylamphetamine 2.0g 200g
MDMA (ecstasy) 2.0g 200g

 

Schedule 2 drugs

Drug Schedule 3
Cannabis 500g

 Are there any defences open to me if I am charged with possessing a dangerous drug?

There are a number of defences to a charge of possessing dangerous drugs.  These include:

  • that the drug was not a dangerous drug;
  • mistake of fact (i.e. that you had an honest and mistaken belief that it was not a dangerous drug); and
  • duress (i.e. that you were not acting with free will).

If I am charged with possessing a dangerous drug, which court will my matter be in?

Possessing a dangerous drug is an indictable offence if the prosecution are alleging that you were in possession of the dangerous drug for a commercial purpose.  If this is the case, the matter will be heard in the Supreme Court.

If it is not alleged that the drugs were possessed for a commercial purpose, the prosecution may elect to have the matter dealt with summarily, which means that the matter will be heard in the Magistrates Court.

Am I eligible for Drug Diversion?

Section 122A of the Drugs Misuse Act states that:-

The court may, if the person is eligible under the Police Powers and Responsibilities Act 2000, section 379 to be offered an opportunity to attend a drug diversion assessment program, order the person to attend, and complete, a drug diversion assessment program as directed by a police officer.

Drug Diversion includes a combined assessment, education and counselling session with a qualified health service provider.  Attending a Drug Assessment and Education Session means that you will not have a conviction recorded for the minor drug offence.  Drug diversion may be offered twice.

You are eligible to be offered to attend a drug diversion assessment program if you:-

  • Are charged with a minor drug offence; and
  • Have not committed another indictable offence in circumstances that are related to the minor drug offence; and
  • Have not previously been sentenced to serve a term of imprisonment for an offence of trafficking, supplying, or producing dangerous drugs, or trafficking in relevant substances or things ; and
  • Have not previously been convicted of an offence involving violence against a person or, if you have been convicted of an offence involving violence against a person, the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 has expired; and
  • Have admitted to committing the minor drug offence during an electronically recorded interview; and
  • Have not been offered the opportunity to attend a drug diversion assessment program.

Eligible drug offences include:-

  • Possessing dangerous drugs;  and
  • Possession of anything used in connection with the administration, consumption or smoking of a dangerous drug or used in connection with such a purpose.

For each dangerous drug mentioned in the charge, the quantity of the substances containing the dangerous drug must be less than the prescribed quantity.  The prescribed quantity of common dangerous drugs include:-

Drug Prescribed quantity
Amphetamine 1.0g
Cocaine 1.0g
Lysergide (LSD) 0.00004g (3 tickets/tabs)
Methylamphetamine 1.0g
MDMA (ecstasy) 1.0g
Cannabis 50g

 Do I need a lawyer if I am charged with possession of a dangerous drug?

A conviction for possessing dangerous drugs (even small amounts of drugs) is a serious matter that can have a major impact on your life and future.  We strongly recommend that you talk to one of our lawyers, who can assist you by:-

  • Advising on your prospects of contesting a charge;
  • Guiding you through the court process;
  • Negotiating with the prosecution;
  • Suggesting ways to reduce penalty and the impact on your future;
  • Reducing some of your stress by answering the difficult questions; and
  • Appearing for you in court.

If you have been charged with this offence or any other type of drug offence, contact our experienced criminal lawyers for advice today.

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