In Western Australia, the criminal law in relation to illicit drugs is fairly complex. There can be greatly varying consequences depending on the weight and name of the drug involved.
The principle piece of legislation in Western Australia is the Misuse of Drugs Act 1981 although the Criminal Code and other written laws are also relevant. There are also federal drugs laws that are applicable to Western Australia, however, the application of these laws is usually in relation attempted drug importations via air, sea or by post.
There are essentially two main offences that are created by the Misuse of Drugs Act 1981 that are used in just about every drugs prosecution brought before the courts. They are commonly referred to as (a) possession (or “simple possession”) and (b) possession with intent to sell or supply. The latter of these two is, of course, more serious. In doing so, the Misuse of Drugs Act categorises (albeit rather crudely) offenders as drug users and drug dealers.
Drug possession or “simple possession” is where illicit drugs are found to be in the possession of the accused person. For someone to be in possession of a thing, both knowledge and physical control must be proven. In other words, the accused must know that the drugs are there as well as physical custody or control of them. More than one person can be deemed to in possession of a single quantity of drugs. Ownership of the drugs is irrelevant. Even if the drugs are not yours: the law says you are nevertheless in possession if the two criteria of knowledge and physical control are met.
Possession with Intent to Sell/Supply
Possession with intent to sell or supply is, as the name suggests, the same as drug possession but with the added element of an intent to distribute those drugs any other person. The element of intent to sell/supply need only apply in relation to part of the drugs even if majority is intended for personal use. This often trips up young people who purchase drugs intended for their own use but who are all too willing to share those same drugs with their friends. In the eyes of the law, this makes you a drug dealer. Unfortunately, too many people agree that they would’ve shared the drugs with their friends when interviewed by the police. An intent to sell/supply is often proven with other evidence such as:
- Text messages recovered from mobile phones;
- Possession of digital scales that are commonly used for weighing drugs prior to sale;
- Possession of moderate to large amounts of cash;
- “tick lists” that are commonly used by drug dealers to record sums of money owed by buyers;
- Unexplained wealth;
- Possession of unused clip-seal bags that are commonly used in the sale of drugs.
Presumed Intent to Sell/Supply
Ordinarily, it is up to the prosecution to prove each element of a charge beyond reasonable doubt. However, the Misuse of Drugs Act 1981 creates a reversal of onus where the alleged quantity of the drug involved exceeds the amount listed in Schedule V of the Act. The quantity varies from drug to drug. Where the onus is reversed, the onus falls on the accused to prove, on the balance of probabilities, that the drugs in question were not intended for sale or supply.
In relation to some of the more common drugs found on our streets, the limits are as follows:
- Methylamphetamine or “ice” or “meth: 2 grams
- Amphetamine or “speed”: 2 grams
- Heroin: 2 grams
- Cocaine: 2 grams
- Cannabis: 100 grams
- MDMA or “ecstasy”: 2 grams
- Dexamphetamine: 2 grams
- Lysergic Acid Diethylmise or “LSD”: 0.002 grams
Where a person is found in possession of a quantity of drugs meeting or exceeding these amounts: there is a presumption at law of an intent to sell or supply.
Amounts of Drugs Determining Court of Trial
For possession of drugs with intent to sell or supply, the Misuse of Drugs Act 1981 also states that quantities of drugs meeting or exceeding the amount specified in Schedules III and IV must be dealt with before the District Court. This is commonly referred to as being dealt with “on indictment”. Lower quantities can be dealt with before the Magistrates Court. Matter that have to be dealt with by the District Court take much longer to resolve and invariably cost more in terms of legal fees. The penalties available in the District Court are much higher than in the Magistrates Court. Generally speaking, where drugs charges have to be dealt with before the District Court: there is usually a considerable risk of a term of imprisonment even if it is a first offence.
Again, in relation to some of the more common drugs found on our streets, the jurisdictional limits are as follows:
- Methylamphetamine: 4 grams
- Amphetamine or “speed”: 4 grams
- Heroin: must be dealt with on indictment
- Cocaine: 4 grams
- Cannabis: 500 grams or 20 plants
- MDMA or “ecstasy”: 4 grams
- Dexamphetamine: 6 grams
- Lysergic Acid Diethylmise or “LSD”: 0.004 grams
What is “Drug Trafficking”
Many people get the impression from television shows that drug trafficking is moving drugs across jurisdictional borders. Whilst this might be true in some countries, under Western Australian law it has a different meaning. The term “Drug Trafficking” is used when the amount of drugs involved triggers Western Australia’s harsh criminal assets and confiscation laws.
Being caught in possession of a traffikable quantity of a prohibited drug has drastic consequences. Upon being charged as a drug traffic, the State will move to freeze all assets belonging to the accused. In addition to attracting a lengthy term of imprisonment, it will also result in a drug traffic declaration being made upon conviction which triggers forfeiture of all frozen assets to the State. It does not matter if those assets were acquired lawfully: if a drug trafficker declaration is made they will be forfeited to the State.
The following drug quantities will result in a drug trafficker declaration:
- Methylamphetamine: 28 grams
- Amphetamine or “speed”: 28 grams
- Cocaine: 28 grams
- Cannabis: 3 kilograms or 20 plants
- MDMA or “ecstasy”: 28 grams
- Lysergic Acid Diethylmise or “LSD”: 0.01 grams
It is important to remember that all weights referred to in the Misuse Of Drugs Act 1981 are gross weight of the substance and not the pure weight. For example, 10 grams of cocaine of 10% purity is still treated as 10 grams.
Also, whilst we have referred to some of the more common brevity drugs found in Western Australia, there are many others that we have not referred to in this article.
If you require legal advice or court representation in respect of a drug charge, please call us today and one of our experienced team will be happy to assist you.