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Drug Offences

In South Australia the non-medical use of drugs is regulated by both State and Commonwealth legislation.

State legislation

The majority of drug offences are charged under state legislation, that is, the Controlled Substances Act 1984 (SA). This Act regulates the manufacture, production, sale, supply, possession, handling or use of certain poisons, drugs, therapeutic and other substances. It is a complex piece of legislation but it broadly distinguishes between users, who face lesser penalties, and producers or suppliers who in general face greater penalties.

The cultivation of industrial hemp is regulated under the Industrial Hemp Act 2017 (SA). A licence is required to possess, cultivate, process or supply industrial hemp for commercial production or any other purpose [s 8(1)].

For a comprehensive summary of offences and penalties under the Controlled Substances Act 1984 (SA) as at October 2014, click here.

Commonwealth legislation

The relevant Commonwealth legislation is contained in the Customs Act 1901(Cth) , the Narcotic Drugs Act 1967 (Cth) and the Psychotropic Substances Act 1976 (Cth) . However, in daily practice only the Customs Act 1901 (Cth) is likely to be encountered. The Customs Act 1901 (Cth) is concerned with the movement and control of goods into and out of Australia and also contains many offences not related to drugs.

Aggravated offences

Under the Controlled Substances Act 1984 (SA), some (not all) offences have two types - a basic offence and an aggravated offence. Of these two types, the aggravated offence will have a higher maximum penalty.

An aggravated offence is an offence where:

  • the offender committed the offence for the benefit of a criminal organisation (see below), or two or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or
  • in the course of, or in connection with, the offence, the offender identified themselves in some way as belonging to, or being associated with, a criminal organisation (even if the offender did not actually belong to or was not actually associated with a criminal organisation.

    [Controlled Substances Act 1984 (SA) s 43]

The ways in which a person may identify themselves as belonging to, or being associated with, a criminal organisation are not limited. One example is that a person will be taken to have identified themselves as belonging to or being associated with a criminal organisation if the person displayed (whether on an article of clothing, as a tattoo or otherwise) the insignia of the criminal organisation, unless the person proves that they did not display the insignia knowingly or recklessly [s 43(2)].

What is a criminal organisation?

There are three definitions of a criminal organisation [Part 3B Criminal Law Consolidation Act 1935 (SA)].

  1. A criminal organisation is a 'criminal group', that is, a group consisting of 2 or more persons where an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence.

    A 'serious offence of violence' involves:

    (a) the death of or serious harm to a person, or a risk of the death of or serious harm to, a person; or

    (b) serious damage to property in circumstances involving a risk of the death of or harm to a person; or

    (c) perverting the course of justice in relation to any of the above conduct.

  2. A criminal organisation is a criminal group, that is, a group consisting of 2 or more persons where an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence intended to benefit the group, persons who participate in the group or their associates.

    A serious offence is an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

  3. An organisation can be declared to be a criminal organisation under the Serious and Organised Crime (Control) Act 2008 (SA).

Simple Cannabis Offences

What is a ‘simple’ cannabis offence?

A simple cannabis offence applies to offences of possessing up to 100 grams of cannabis, or 20 grams of cannabis resin, or smoking cannabis in private, or possessing equipment (for example, pipes, bongs) or cultivating not more than 1 cannabis plant [ Controlled Substances Act 1984 (SA) s 45A].

Cannabis Expiation Notice

Where a person commits a ‘simple’ cannabis offence the police have discretion to issue a Cannabis Expiation Notice. This requires payment of an ‘on the spot’ fine and allows an individual to avoid prosecution in court.

The expiation notice must be given to the alleged offender stating that the offence may be expiated by payment to the Commissioner of Police of the prescribed expiation fee before the expiration of 28 days from the date of the notice. The notice may be given personally to the alleged offender or posted to his or her last known place of residence.

No prosecution for expiated offences

Where the offence is expiated (that is, the fee paid within time) no prosecution for the offence shall proceed. In addition, the payment of an expiation fee will not be regarded as an admission of guilt [ Expiation of Offences Act 1996 (SA) s 15(4)]. If the amount of the expiation notice is not paid the person will receive a summons to go to court. If the offence is expiated, any substance and equipment may also be forfeited [s 15(5)].

Reminder notice

If an expiation notice is not paid, a reminder notice is issued. Enforcement proceedings will be taken to recover the amount and enforcement costs [see The Sentencing process]. The matter would not normally go to court unless the offence is disputed.

Prosecution only after expiation notice issued

A prosecution in court for a 'simple cannabis offences' can only be commenced after the person has been given an expiation notice [Controlled Substances Act 1984 s 45A(2)]. In the event that a summons is issued instead, then the court hearing should be adjourned to enable the Police to give the person the opportunity of being served with an expiation notice and expiating the offence. This is desirable as, if the matter is expiated, no criminal record results.

Hydroponically grown cannabis excluded

Cannabis grown hydroponically is specifically excluded from the Cannabis Expiation Notice scheme.

Possession in a public place

An offence for smoking in a public place may not be dealt with in this way. Regulation 15 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) says that this includes includes smoking in a motor vehicle or in public transport which is in a public place. People who get caught smoking cannabis in hotel car parks and similar places may be prosecuted and convicted in court.

Commercial purpose attracts higher penalties

If there is any suggestion that the possession or cultivation of less than the prescribed amount is for a 'commercial purpose', then the offence attracts greater penalties.

Higher penalty even for own use if quantity exceeds 1 plant

Also where a person is found guilty of cultivating between 2-5 plants, the maximum penalty in such cases is $1000 and/or 6 months imprisonment. When the number of plants is over 5 but under 10, the maximum penalty is 2 years imprisonment and/or a fine of $2000 [Controlled Substances Act 1984 (SA) s 33K]. If you are able to prove that the plants were for personal use or supply and not sale, regardless of the number, then this penalty will also apply. However, this would be difficult with large numbers of plants.

Offence Expiation fee
Less than 25 grams of cannabis $150
Between 25 and 100 grams of cannabis $300
Less than 5 grams of resin $150
Between 5 and 20 grams of resin $300
For smoking or consumption in private $150
For pipes or other equipment (provided it is not for commercial purposes) $150
For pipes or other equipment (if there are other offences) $30
Non-commercial cultivation (1 plant only, but not hydroponically cultivated) $300

[Expiation fees set out in Shedule 5 Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA)]

More serious charges likely if evidence of sale or supply

If a person has no drugs, or only a small amount, but there is evidence that the person has sold or supplied drugs (even sharing with a friend), the person will face a more serious charge and will have to appear in court. The penalties for sale are more severe than for supply.

Possession for personal use

Possession of cannabis or a controlled drug

Under s 33L of the Controlled Substances Act 1984 (SA) it is an offence for a person to:

  • have possession of a controlled drug;
  • smoke, consume or administer to him or herself, or allow another person to administer to them, a controlled drug;
  • have possession of any piece of equipment for use in connection with the smoking, consumption or administration of a controlled drug;
  • have possession of any piece of equipment for use in connection with the preparation of a controlled drug for smoking, consumption or administration.

This is often referred to as a simple possession offence.

Maximum penalty:

  • For a drug other than cannabis, cannabis resin or cannabis oil: $2 000 or imprisonment for 2 years, or both.
  • In relation to cannabis, cannabis resin or cannabis oil: $500.

For simple possession offences involving there is a police drug diversion program available. The program diverts individuals away from the criminal justice system into treatment and education and provides an opportunity to avoid prosecution in court, see Diversionary schemes.

Whether or not a person is guilty of a simple possession/use charge or a more serious charge of trafficking, manufacturing, cultivation, sale or supply will depend partly on the amount of the drug involved.

Presumption of sale or supply

Possession of more than a certain amount of a drug or substance will lead to a presumption that it is for sale or supply and take the offence out of this penalty range.

Possession of a controlled precursor

It is an offence to possess, or to supply, or to possess intending to supply, a prescribed amount of a controlled precursor [Controlled Substances Act 1984 (SA) s 33LB].

Maximum penalty: $10 000 or 3 years imprisonment or both.

The maximum penalty increases if, in addition, the person also possesses, supllies, or possesses with intention to supply another kind of controlled precursor or any prescribed equipment: $15 000 or 5 years imprisonment or both.

Prescribed equipment includes [Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 9]:

  • equipment for hydroponic cannabis cultivation (the Regulations provide a list of equipment);
  • equipment for the manufacture of controlled drugs (the Regulations provide a list of equipment); and
  • a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant [see s 33LB Controlled Substances Act 1984 (SA)]

Definition of 'possession'

There is a lot of law about the definition of possession which is defined in section 4 of the Controlled Substances Act 1984 (SA) as including having 'control over the disposition of the substance or thing' as well as 'having joint possession of the substance or thing'.

Intending to control the disposition of substances in another person's custody will also imply possession.

Elements of possession

Possession, incudes two elements:

  • being in physical control of the drug (includes joint control with another / others); and
  • knowledge (or intention) of having the drug.

Both elements must exist before a person can be found guilty.

What is physical control?

Physical control requires custody; and control; or the ability to exercise control over the goods at will, including control over their disposition.

A person will usually have possession of a drug if it is found in that person's pocket or hand or bedroom, where the person alone has access to it. However, as control also includes disposition this can include anything from throwing the substance away, to never actually having had physical possession but possessing the ability to say where the substance should be placed.

A person possessing a container is usually assumed to be in possession of its contents although this can be challenged if the person was mistaken about its contents.

Joint possession with another or others is also now specifically covered under the Controlled Substances Act 1984 (SA) definitition [s 4]. This might be the case if for example, the substance is found in a car with a group of people and they are all have control of the substance.

Possession is not necessarily the same as ownership

Possession is not necessarily the same as ownership, although ownership often can be used to show possession. Possession will depend on the circumstances of each case. For example, where a drug is found in a communal part of premises, (where people come and go), the prosecution will have difficulty in proving precisely who is in possession of the drug. However, prosecution can charge people together and allege that they were in joint possession of the drug.

[ See further a key case on possession and controlled substances: Bourne v Samuels (1979) SASR 591]

Knowledge

To be guilty of possession the defendant must be shown to have known two things:

  • first, that they knew the substance was in their custody and control, and
  • secondly, that they knew the substance was a prohibited one and that possession of it is contrary to the laws relating to illegal drugs.

Even where the defendant did not know precisely what the drug was, if it can be shown that he or she knew that the substance was an illicit one this will be sufficient to establish the offence. It may be possible to draw the conclusion that a person had this knowledge from the circumstances surrounding the offence.

It is not necessary to have actual knowledge that a substance is illicit or prohibited, it can be enough that the defendant was aware of the likelihood that a concealed substance was a prohibited drug.

Defence of honest and reasonable mistake:

It is a defence to prove an honest and reasonable mistake about the nature of the substance possessed.

Intention

To be guilty of possession a person must also intend to exercise control over the drug, as well as being in a position to do so.

For example, if a person has drugs in her or his room, someone else who knows they are there, but does not intend to exercise any control over the drugs, does not possess them.

It is not an offence simply to be close to drugs, or to know where the drugs are, without also having an intention to possess them.

Manufacture, Cultivation and Sale

In addition to user offences, there are a range of offences relating to the manufacture, cultivation and sale of controlled drugs, plants or precursors.

Under the Controlled Substances Act 1984 (SA), it is an offence to:

  • manufacture a controlled drug intending to sell any of it or believing another person intends to sell it [s 33];
  • sell a controlled precursor, believing that the buyer or someone else intends to use any of it to unlawfully manufacture a controlled drug [s 33A];
  • cultivate controlled plants intending to sell them or their products or believing another person intends to sell it [s 33B];
  • sell or intend to sell controlled plants [s 33C].

Precursors are certain defined substances that are used in the manufacturing process to make controlled drugs [see the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA)].

Penalties in relation to controlled drugs

There is a distinction that affects the penalty between large commercial quantity and commercial quantity.

Large Commercial Quantities

Offences involving large commercial quantities attract a maximum fine of $500 000 and/or life imprisonment. (This offence does not have an 'aggravated offence' type.)

Commercial Quantities

Basic offences involving commercial quantities attract a maximum fine of $200 000 and/or 25 years imprisonment.

Aggravated offences of manufacturing controlled drugs involving commercial quantities attract a maximum fine of $500 000 and/or life imprisonment.

Less than commercial quantities

If the quantity of drug is lower than the commercial quantity, then the penalty for a basic offence is a maximum fine of $50 000 and/or imprisonment for 10 years.

The penalty for an aggravated offence is a maximum fine of $75 000 and/or imprisonment for 15 years.

For example:

Controlled Drug Large Commercial Quantity Commercial Quantity
MDMA .75kg (pure)/1kg (mixed) 0.1kg (pure)/0.5kg (mixed)
Cannabis 2kg (pure)/12.5kg (mixed) 1kg (pure)/2.5kg (mixed)
Heroin 0.75kg (pure)/1kg (mixed) 0.1kg (pure)/0.2kg (mixed)0.1kg (pure)/0.2kg (mixed)
LSD 0.015 kg 0.005 kg

For these and other quantities see the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).

Further definition of manufacture, cultivation and sale

Persons take part in manufacture, cultivation or sale if they:

  • take or cause any step to be taken in the process
  • provide or arrange finance for a step in the process
  • provide or permit premises to be used
  • guard or conceal drugs or related materials or equipment
  • store drugs or related materials or equipment
  • carry, transport, load or unload
  • package
  • buy plants, equipment, substances or materials.

All of these actions are punished in the same way as the manufacture, cultivation or sale offences.

Penalties in relation to controlled precursors

The penalties for selling or manufacturing controlled precursors (the chemicals needed to make some controlled drugs) are also dependant on the amount of precursor involved.

Basic offences involving large commercial quantities attract a maximum fine of $200 000 and/or imprisonment for 25 years. Aggravated offences of manufacturing precursors involving large commercial quantities attract a maximum fine of $500 000 and/or imprisonment for life.

Basic offences involving commercial quantities attract a maximum fine of $75 000 and/or imprisonment for 15 years. Aggravated offences involving commercial quantities of precursors attract a maximum fine of $200 000 and/or imprisonment for 25 years.

Any amounts below these for a basic offence attract the maximum penalty of $50 000 and/or imprisonment of 10 years, or for an aggravated offence, a maximum penalty of $75 000 and/or imprisonment of 15 years.

Presumption of sale

Trafficable quantity

A person in possession of more than a prescribed quantity (trafficable quantity) of a drug is assumed to have it to sell unless the person can prove it is for personal use only [Controlled Substances Act 1984 (SA) s 32(5)].

The limits for commonly encountered substances are as follows:

Prohibited drug Trafficable quantity
cannabis 250 grams
cannabis resin (hashish) 25 grams
cannabis oil 25 grams
cocaine 2 grams
heroin 2 grams
LSD 0.015 grams
some forms of amphetamines 2 grams
MDMA 2 grams
opium 30 grams

See these and other quantaties in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).

Ephedrine (sometimes sold as amphetamine) is not prohibited by this section but see: additional offences. It is however considered to be a precursor.

Presumption of sale

This assumes that anyone possessing more than a trafficable quantity is going to distribute it and not consume it all. However, the quantities are small and bear no relationship to the realities of narcotics addiction (the quantity for heroin is only 2 grams) or the yield of a cannabis plant (the quantity for cannabis is 250 grams).

Additional evidence of sale

Possession of items such as scales, sandwich bags, cash and separately packed quantities of drugs are regarded as additional evidence of selling or supplying. The 'deeming quantities' of drugs that bring this presumption into operation are, for practical purposes, the same as trafficable quantities as defined under the Customs Act 1901 (Cth).

Ordinary users, supply deeming provisions and sale

There is a separate offence of supplying someone with a controlled drug and supplying someone with cannabis, with lesser penalties than those for trafficking or sale [s 33I]. However, if the amount is over the deeming provision, then it is up to the person charged to prove this, as they will still be presumed to be selling.

For example, one heroin user who buys the drug for them and a friend, injects a friend or helps a friend to self inject is will be subject to the offence of supply, if the amount is under the deeming provision. If the amount is over the deeming provision, they will be charged with possession for sale, and will need to prove that it was for supply, not sale. Past experience suggests that to share a cannabis cigarette does not mean the provider is a supplier, but any suggestion that another person was to share in future use of the drug may put the person then in possession at risk of a supply charge.

Possession or Sale of Equipment

Possession of equipment in relation to cannabis use or preparation

Maximum penalty: $500

Possession of equipment in relation to controlled drug use or preparation

Maximum penalty: $2 000 or 2 years imprisonment or both

Possession of prescribed equipment

Prescribed equipment includes [Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 9 ; Controlled Substances Act 1984 (SA) s 33LB]:

  • a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant
  • equipment for hydroponic cannabis cultivation (the Regulations provide a list of equipment)
  • equipment for the manufacture of controlled drugs (the Regulations provide a list of equipment).

Under the Controlled Substances Act 1984 (SA) [s 33LA] it is an offence to:

  • have possession of any prescribed equipment
  • supply to another person any prescribed equipment
  • have possession of any prescribed equipment intending to supply it to another person.

Maximum penalty: $10 000 or imprisonment for 2 years, or both.

Defence: it is a defence if the person had a reasonable excuse to have the equipment. It is up to the person to show they had a reasonable excuse.

Possession of both equipment and precursors

Possession of equipment used to manufacture controlled drugs as well as possession of controlled precursors (chemicals used to make drugs) is an offence [s 33LB].

Maximum penalty: $15 000 or imprisonment for 5 years, or both.

Sale of equipment

Under the Controlled Substances Act 1984 [s 33D] it is an offence to:

  • sell a piece of equipment for use in connection with the smoking, consumption or administration of a controlled drug, or the preparation of such a drug for smoking, consumption or administration
  • possess a piece of equipment, intending to sell it for such use.

Maximum penalty: $10 000 or imprisonment for 2 years, or both.

Sale of equipment to a child for use in connection with consumption of controlled drugs (and possession with intent to sell)

Under the Controlled Substances Act 1984 [s 33GA] it is an offence to:

  • sell a piece of equipment to a child for use in connection with the smoking, consumption or administration of a controlled drug, or the preparation of such a drug for smoking, consumption or administration
  • possess a piece of equipment, intending to sell it to a child for such use.

Maximum penalty: $20 000 or imprisonment for 2 years, or both.

Sale or supply of drug paraphernalia

Under s 9B Summary Offences Act 1953 (SA) it is an offence to sell or supply drug paraphernalia. Penalties apply to individuals and also to businesses and there are separate penalties where the sale or supply has been to a minor.

Maximum penalty for sale or supply of prohibited item:

  • for an individual - $10 000 or 2 years imprisonment
  • for a body corporate - $50 000

Maximum penalty for sale or supply of prohibited item to a minor:

  • for an individual - $20 000 or 2 years imprisonment
  • for a body corporate $100 000

The list of prohibited items includes the following:

  • water pipe – this includes devices known as bongs, hookahs, narghiles, shishas and ghalyans
  • prohibited pipe (a device, or components, when assembled that form a device, other than a water pipe that is intended for use or designed for use in smoking cannabis, cannabis resin or methamphetamine crystals, it includes 'hash pipes' and 'ice pipes' )
  • cocaine kit*
  • the legislation allows for other items to be prescribed as prohibited by regulation

A cocaine kit consists of 2 or more of the following items packaged as a unit apparently for the use of cocaine:

  • a razor blade
  • a tube
  • a mirror
  • a scoop
  • a glass bottle
  • any other item apparently for use together with any of these items to prepare cocaine for use.

Sale or Possession of Instructions

Sale of instructions (and possession with intent to sell)

Under the Controlled Substances Act 1984 (SA) [s 33DA] it is an offence to sell, or possess intending to sell, a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant.

Maximum penalty (basic offence): $10 000 or imprisonment for 3 years, or both.

Maximum penalty (aggravated offence): $15 000 or imprisonment for 5 years, or both.

Defence: it is a defence if the person had a reasonable excuse to sell or have the instructions. It is up to the person to show they had a reasonable excuse.

Sale of instructions to a child

Under the Controlled Substances Act 1984 (SA) [s 33GB] it is an offence to sell to a child, or possess intending to sell to a child, a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant.

Maximum penalty (basic offence): $20 000 or imprisonment for 3 years, or both.

Maximum penalty (aggravated offence): $30 000 or imprisonment for 5 years, or both.

Defence: it is a defence if the person had a reasonable excuse to sell or have the instructions. It is up to the person to show they had a reasonable excuse.

Possession or supply of instructions

Under the Controlled Substances Act 1984 (SA) [s 33LAB] it is an offence to possess, supply, or possess intending to supply, a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant.

Maximum penalty: $10 000 or imprisonment for 2 years, or both.

Note: 'document' includes any record of information in whatever form, including magnetic or electronic.

Production, promotion and sale of controlled drug alternatives

The following are offences under the Controlled Substances Act 1984 (SA):

  • Section 33LD - Intentional manufacture of controlled drug alternative;

  • Section 33LE - Promoting controlled drug alternative; and

  • Section 33LF - Manufacturing, packaging, selling or supplying substance promoted as controlled drug alternative.

These sections concern substances which either have, or were intended to have, or are promoted as having, pharmacological effects similar to a controlled drug. They are also about substances which are promoted as legal alternatives to a controlled drug, or are sold as controlled drugs but are actually different substances.

Under these sections, manufacturing includes taking part in the process. Taking part in a step in the process is broadly defined and includes things such as: getting together or hiding equipment, substances or materials; arranging or providing money to fund any part of the process; transporting and loading materials; and allowing your house to be used for the process [see further s 33LC(1)-(3)].

These offences can be committed even if the substance is marked ‘not for human consumption’, or similar labelling such as stating that it is not an alternative to a controlled drug [s 33LC(4)].

The Court can prohibit someone from running a business if they have been convicted of committing any of these offences in the course of running a business. The Court can also make other orders that it thinks is appropriate [see further s 33T].

Penalties:

  • s 33LD - Maximum penalty: $15 000 or imprisonment for 4 years, or both

  • s 33LE - Maximum penalty: $10 000 or imprisonment for 2 years, or both

  • s 33LF - Maximum penalty: $15 000 or imprisonment for 4 years, or both

Trafficking

The penalty structure for trafficking [s 32 Controlled Substances Act 1984 (SA)] depends on the quantity of the drug. The higher the amount of the drug or plant, the higher the penalty.

Large Commercial Quantities

Offences involving large commercial quantities attract a maximum fine of $500 000 and/or life imprisonment.

Commercial Quantities

Basic offences involving commercial quantities attract a maximum fine of $200 000 and/or 25 years imprisonment. Aggravated offences: $500 000 or imprisonment for life, or both.

Less than commercial quantities

If the quantity of drug is lower than the commercial quantity, then the penalty for a basic offence is a maximum fine of $50 000 and/or imprisonment for 10 years.

Aggravated offences: $75 000 or imprisonment for 15 years, or both.

Trafficking in a prescribed area

A person convicted of trafficking controlled drugs in a prescribed area faces heavy penalties. A prescribed area includes:

  • Licensed premises (e.g. a hotel licence, restaurant licence, entertainment venue licence, or special circumstances licence with extended trading authorisation, casino licence)

  • An area being used in connection with the licensed premises (e.g. car park)

  • Premises at which members of the public are gathered for public entertainment or an area being used in connection with the premises (e.g. an area where people are queuing to enter the premises)

Maximum penalty: $75 000 or imprisonment for 15 years, or both.

Aggravated offence: $200 000 or imprisonment for 25 years, or both.

See also the Duty Solicitor Handbook's section on Trafficking in Controlled Drugs.

Sentencing Principles

Penalties imposed vary depending on all the circumstances.

The penalties that have been stated earlier in this section are the maximum possible penalties. The actual penalty that may be imposed will vary widely, depending on all of the circumstances.

When determining what penalty to impose a court must consider [Controlled Substances Act 1984 (SA) s 44]:

  • the nature and the quantity of the substance;
  • the personal circumstances of the offender (if relevant) including circumstances relating to his or her use of the drug;
  • the person's commercial or other motives for committing the offence;
  • the financial gain that was likely to have been made by the person as a result of the offence;
  • where a child has been supplied a drug of dependence or prohibited substance, whether the offence occurred within a school zone or near to any other prescribed place; and
  • any other relevant factor.

High penalties imposed for commercial offences

The Supreme Court of South Australia has reiterated its determination to maintain high penalties for drug offences of a commercial nature to deter people who are tempted to engage in these activities.

In R v Mangelsdorf, R v Perry and R v Richards (1995) 66 SASR 60, the Court of Criminal Appeal heard and upheld three simultaneous appeals by the Director of Public Prosecutions against inadequate sentences imposed in lower courts.

Mangelsdorf was a 32 year old 'street trader' found in possession of fifteen 'tastes' of heroin who admitted selling 'tastes' for about 2 months to finance his own addiction. Notwithstanding a previous 'clean' record and good prospects for rehabilitation a suspended term of imprisonment was increased to 4 years, with a non-parole period of 18 months, unsuspended.

Perry was a 20 year old without previous convictions. Following intercepts of phone conversations he was convicted of conspiring to trade in LSD. He had a 'clean' record, and a number of other personal factors in his favour. He received a 2 years 6 months suspended term of imprisonment with an order that he perform community service work.

Richards was originally given a suspended sentence for possession of about 8 kg of cannabis and 80 g of cannabis resin for purpose of sale. This was increased to four years imprisonment, with a minimum of two years to serve.

Diversionary Schemes

There are a variety of schemes designed to assist drug users to break the cycle of drug abuse and crime, and to keep offences involving possession of small amounts of cannabis for personal and private use out of the court system.

Drug Assessment Panel

CARDS

Youth CARDS

Drug Court

DRUG ASSESSMENT PANEL

The Controlled Substance Act 1984 (SA) [ss 34 - 40A] provides a scheme of rehabilitation for suitable offenders charged with simple possession of drugs of dependence (except cannabis). The diversion scheme is restricted to drug offences and is not available for non-drug offences, even where drug use is a significant component of the offending.

The Act establishes Drug Assessment Panels overseen by the Health Commission. The police must refer allegations of simple possession of defined amounts of drugs of dependence to an assessment service [Controlled Substances Act 1984 (SA) s 36].

Referral to Drug Assessment Panel operates as stay of proceedings

The referral pauses a prosecution for the alleged offence (it operates as a stay of proceedings).

A prosecution for a simple possession offence cannot proceed unless the referral has been terminated by the service [Controlled Substances Act 1984 (SA) s 40].

In order to carry out its assessment, the service may request medical records, drug treatment records, criminal records, etc or require a medical examination [s 37(2)].

A referral may be may terminated if a person fails to comply, does not admit allegations or does not wish to participate in the program [s 37(3)]. In this case the prosecution for the simple possession offence can proceed.

Undertaking by person on completion assessment

After an assessment, a person enters into an undertaking similar to a bond for a period of up to six months, involving participation in treatment programs, counselling courses. Those under the age of 18 years are excluded from this scheme. If a person undertakes treatment or rehabilitation, the criminal charges are withdrawn [Controlled Substances Act 1984 (SA) s 38].

Participation not an admission of guilt

The fact that a person alleged to have committed a simple possession offence participates in an assessment or enters into an undertaking is not an admission of guilt [Controlled Substances Act 1984 (SA) s 40(2)].

On successful completion of an undertaking, the person is immune from prosecution [Controlled Substances Act 1984 (SA) s 40(4)].

Anything said or done by a person doing an assessment or undertaking is not admissible evidence in any proceedings for the alleged offence [s 40(3)].

More than three diversions

Whilst there is no limit to the number of times a person can be diverted for simple possession offences, an adult diverted on more than three occasions will be seen by a panel of assessors on the fourth and subsequent diversions.

CARDS (Court Assessment and Referral Drug Scheme)

A diversion program run through the court system is the CARDS (Court Assessment and Referral Drug Scheme) program. This program targets offenders who:

  • have current offences in court which were committed to support their drug dependence, or
  • committed offences whilst under the influence, or
  • have been charged with possession or use of an illicit drug

The intervention is intended to assist offenders who may be at an earlier stage in the drug use/offending cycle. Under the program, the defendant is referred for assessment by the court. If accepted onto the program, the court proceedings are adjourned for 3 months during which time defendant is required to attend at four sessions with a drug counsellor. Referrals are also made with other service providers such as psychologists and doctors as the particular individual may require. Participation in this program will be taken into account when someone is sentenced.

Eligibility criteria:

  • must be over 18 years of age at the time of the offending
  • must make an admission to treatable drug use
  • only applies to summary or minor indictable offences (i.e. major indictable offences cannot be diverted)
  • if the offender is in custody, they must be suitable for release into the community
  • must have stable accommodation available
  • must live in an area that is serviced by a treatment agency
  • must have no current sexual or violent offences
  • must give informed consent to participate

Referrals

Referrals to CARDS can be made by the court, a legal practitioner or by the offender themselves (prior to the court hearing).

Treatment

Treatment involves four sessions of drug counselling over a period of three months. Intervention can include:

  • withdrawal management and in patient detox
  • pharmacological treatment
  • group therapy
  • residential rehabilitation
  • support with physical and mental health issues
  • referral to Narcotics Anonymous and other groups
  • support with education or vocational training
  • support with accommodation, family relationships and financial issues

YOUTH CARDS (Court Assessment and Referral Drug Scheme)

This programme is available to young offenders (i.e. under 18 years of age) appearing before the Youth Court or who have a matter being dealt with by Family Conference.

Eligibility criteria:

  • have current offences in relation to possession or use of drugs/alcohol OR have committed an offence whilst under the influence of drugs/alcohol OR committed an offence to support a drug/alcohol habit
  • is suitable for release on bail
  • has provided informed consent to participate (or parental consent if under 16 years of age)
  • resides in an area where a treatment provider is available

Referrals

Whilst referral is usually made by a Magistrate or Judge of the Youth Court or by the Family Conference team staff, self referrals can also be made.

Treatment

  • Four counselling sessions over a three month period
  • Referral to a youth specific agency for drug/alcohol treatment services

SOUTH AUSTRALIAN DRUG COURT

Two programmes are offered – both of which are highly supervised and involve intensive drug treatment. Participation in the programme is terminated where an individual fails to comply.

  • Twelve month program is aimed at middle to hard end offenders who are looking at 12 months imprisonment or more, whose offending is linked to drug dependence and are assessed as needing an intensive drug intervention.

  • Six month program is aimed at individuals unlikely to receive a lengthy sentence of imprisonment and who are assessed as needing a less intensive drug intervention.

The program involve three phases of treatment and intervention:

Phase one

  • Home detention bail monitoring (to the minute) and controlled movement within the community
  • Random supervised urine tests three times a week
  • Attendance at court fortnightly

Phase two

  • Curfew monitored through home detention
  • Random supervised urine tests twice a week
  • Attendance at court every three weeks

Phase three

  • Simple bail
  • One supervised urine test per week
  • Monthly court attendance

Eligibility criteria:

  • must be over 18 years of age
  • must reside within the boundaries of the Adelaide metropolitan area
  • must enter guilty pleas to the majority of offences and, in particular, the most serious offences
  • available for summary and minor indictable offences only
  • cannot have any current major indictable matters pending
  • not have prior or current offences of violence
  • provide informed consent to participation

Referral

Can be through Magistrate, a legal practitioner or police charging sergeant. It is usually made by a court application upon entering a guilty plea. Those offenders with matters before suburban Magistrates Courts will be referred to the Adelaide Magistrate Court.

Treatment

  • Individuals are assigned a Drug Court case supervisor
  • Individuals must coordinate leave passes with the consent of their supervisor
  • Extensive treatment and counselling including individual counselling and group therapies
  • Other supports are provided as needed e.g. financial counselling, coordination with Family Court matters, accommodation assistance and access to education
  • Assistance for Indigenous participants of the program is provided by the Aboriginal Sobriety Group

Police Powers

Police powers under the Controlled Substances Act 1984 (SA)

The Controlled Substances Act 1984 (SA) gives broad powers to the police and other people to investigate offences under the Act including the power to:

  • enter premises at any time;
  • if necessary, break into or open the premises or anything in or on them (police only);
  • require the driver of a vehicle, master of a vessel or pilot of an aircraft to stop;
  • inspect and search premises and anything in or on the premises;
  • require any person to produce books, papers, documents, equipment, substances or devices;
  • take samples of any substances or goods;
  • seize and remove anything that might be evidence of an offence under the Act.

    [See Part 7 Controlled Substances Act 1984 (SA)]

Warrant required to enter premises

Before a premises can be entered or broken into a warrant must be obtained from an approved police officer, justice of the peace or special magistrate, who must be satisfied that there are reasonable grounds for suspecting that an offence against the Act has been, is being, or is about to be, committed and that a warrant is reasonably required in the circumstances [ see further s 52(4) Controlled Substances Act 1984 (SA)].

General police powers

General police powers to search and enter are authorised by the Summary Offences Act 1953 (SA) and remain unaltered by the Controlled Substances Act 1984 (SA) , see arrest and questioning. Generally, a person must be arrested before she or he can be searched [ Summary Offences Act 1953 (SA) s 81]. However, police may search people withoutarresting them if the police have a reasonable belief that they are in possession of any substance or equipment in contravention of the Controlled Substances Act 1984 (SA). A person can insist on being taken before a magistrate to have the search authorised but as there is no obligation on a police officer to inform the person of this right it is rarely invoked. As a consequence, street searches for pipes and cannabis are common.

Drug detection dogs and electronic drug detection devices

Police can use drug detection dogs (or ‘sniffer’ dogs) or electronic drug detection systems in certain areas including:

  • Licensed premises or car parks provided for patrons of licensed premises;
  • Public venues or car parks provided for patrons of public venues;
  • Public passenger carriers including: buses, trams, trains and aircraft.

Confiscation of assets or profits

Orders for forfeiture

As well as the power to fine and imprison, courts have the power under the Criminal Assets Confiscation Act 2005 (SA) to order the forfeiture of articles involved in the offences (for example, drugs or pipes), property acquired for the purpose of committing the offence (for example, land to grow cannabis commercially, equipment to irrigate, trucks to transport) or the proceeds or profits from the offence. If a serious drug offence has occurred (such as trade), or a person has become a prescribed drug offender, then any tainted property may be forfeited or restrained.

Assets may be forfeited if acquired with proceeds of offence

Assets may also be taken if they have been acquired from the proceeds of an offence. Where it is not possible to tell the extent of the contribution from the proceeds of offences, the whole of the tainted property can be forfeited. Where an innocent person has an interest in the same property the court may order that the person be compensated. Property (such as the family home or car) might not be forfeited if it would cause disproportionate hardship to innocent people. The court might also allow access to restrained funds for payment of reasonable legal costs.

Power to freeze assets

Even before a person is convicted of an offence, courts have the power to prevent any disposal or dealing in the property which is reasonably suspected of being liable to forfeiture, until the question of forfeiture is decided (a restraining order) [Criminal Assets Confiscation Act 2005 (SA) s 24].

Disposing of property the subject of an order a further offence

Any attempt to then dispose of the property is an offence which is punishable by a maximum fine of $20 000 or imprisonment for four years [Criminal Assets Confiscation Act 2005 (SA) s 33].

Prescribed drug offenders

The court has specific powers to seek forfeiture and restraining orders for all property of prescribed drug offenders, regardless of whether that property was acquired through the proceeds of an offence. A prescribed drug offender is a person who has been convicted of a serious drug offence (such as trafficking or manufacturing a commercial quantity of a controlled drug) where they have at least two other previous convictions for prescribed drug offences in the previous ten years [see Criminal Assets Confiscation Act 2005 (SA) s 6A].

Immediately on a person becoming a prescribed drug offender (i.e. upon conviction), a forfeiture order will be taken to have been made by the convicting court [see s 56A(1)]. This is referred to as a deemed forfeiture order. Upon conviction, all property owned by a prescribed drug offender will then be forfeited to the Crown, aside from protected or excluded property [see s 56A(2)]. This means that a prescribed drug offender's property does not have to be acquired through the proceeds of an offence to be forfeited or restrained [see definition of tainted property in section 3].

The court can order that certain property be excluded from a forfeiture order, in circumstances where, for example, the prescribed drug offender has cooperated with a law enforcement agency, or where it would be contrary to the financial interests of the Crown to have the property forfeited [see ss 59A and 59B].

Justice Rehabilitation Fund

The proceeds of any confiscated assets forfeited to the Crown upon the conviction of a prescribed drug offender will be paid into the Justice Rehabilitation Fund. This Fund sits separately from the Victims of Crime Fund and enables the Attorney-General to fund programs and facilities for the benefit of offenders, victims and other persons, that will further crime prevention and rehabilitation strategies [see s 209A(5)]. In addition to any proceeds garnished from prescribed drug offenders, Parliament or the Attorney-General can also allow for additional funds to be paid into the Justice Rehabilitation Fund [see s 209A(3)].

Additional Offences

Obtaining drugs by deception

The Controlled Substances Act 1984 (SA) [Part 4] also creates a number of offences for obtaining drugs by deception from legitimate sources, such as doctors, dentists, or pharmacists. This includes the use and possession of forged prescriptions. Generally these offences duplicate existing offences, such as the forging and altering of documents and obtaining by false pretences.

Possession without authority of prescription drugs

Under the Controlled Substances Act 1984 (SA) s 18(3), it is an offence to possess without authority substances declared to be 'prescription drugs'. It is also an offence to prescribe a prescription drug without the proper authority [s 18(1)].

Maximum penalty: $10 000 fine or imprisonment for 2 years.

The 'Standard for the Uniform Scheduling of Drugs and Poisons' published by the Australian Health Ministers Advisory Council and updated from time to time lists these substances.

There is also a restriction of prescription or supply of certain drugs of dependence in certain circumstances [s 18A].

Sale or supply of volatile solvents

Another provision covers the sale or supply of volatile solvents where the seller suspects the buyer is intending to inhale the solvent or supply it to another to inhale [s 19].

Maximum penalty: $10 000 fine or imprisonment for 2 years.

Drug paraphernalia

Under s 9B Summary Offences Act 1953 (SA) it is an offence to sell or supply drug paraphernalia. Penalties apply to individuals and also to businesses and there are separate penalties where the sale or supply has been to a minor.

Maximum penalty for sale or supply of prohibited item:

for an individual - $10 000 or 2 years imprisonment

for a body corporate - $50 000

Maximum penalty for sale or supply of prohibited item to a minor:

for an individual - $20 000 or 2 years imprisonment

for a body corporate $100 000

The list of prohibited items includes the following:

  • water pipe – this includes devices known as bongs, hookahs, narghiles, shishas and ghalyans
  • prohibited pipe (a device, or components, when assembled that form a device, other than a water pipe that is intended for use or designed for use in smoking cannabis, cannabis resin or methamphetamine crystals, it includes 'hash pipes' and 'ice pipes' )
  • cocaine kit*
  • the legislation allows for other items to be prescribed as prohibited by regulation

A cocaine kit consists of 2 or more of the following items packaged as a unit apparently for the use of cocaine:

  • a razor blade
  • a tube
  • a mirror
  • a scoop
  • a glass bottle
  • any other item apparently for use together with any of these items to prepare cocaine for use.

Customs Act offences

The law relating to the exportation or importation of illicit drugs (narcotic goods'or narcotic substances' into or out of Australia is contained in the Customs Act 1901 (Cth).

Importing

Elements of the offence

The offence of importing prohibited narcotics requires the prosecution to prove beyond reasonable doubt two things:

  • the fact of importing, and
  • that the item was knowingly imported.

Proof of importation

Importation is proved by the passage of a bag through Customs into Australia after leaving an overseas aircraft or by proving the passage of a letter through the postal network into Australia from overseas.

Knowledge required

To prove that it is a crime it must be shown that the accused knew that it was there and what it was. In practice, this evidence is often obtained from the confessions of people arrested.

Territorial limits

The general principle is that only crimes committed within the territorial limits of Australia can be punished in Australian criminal courts. It is well established that goods are regarded as imported when the aircraft carrying them lands in Australia or when a ship has brought them within a port. Any person in possession of a prohibited import within Australia's territorial seas is also within the reach of the Customs Act 1901 (Cth).

Ancilliary offences

In addition to those people directly involved with narcotics other people can also be charged in the following circumstances:

  • any person who aids, abets, counsels or procures any principal offence (that is, any of the possession or importing offences) and any person who aids, abets, counsels or procures a person who commits the first ancillary offence (that is, herself or himself an aider or abetter) also commits an offence [Customs Act 1901 (Cth) s 236]. The permutations opened up by this provision are fascinating: it may be possible to aid a person who is only concerned in the intended importation of a drug or to aid a person who aids yet another person who imports a drug. These unlikely possibilities remain untested.

  • attempting to commit any offence is the same as actually committing the offence [Customs Act 1901 (Cth) s 237]. Again, while it is possible to produce theoretical offences by combining this provision with the ancillary offences set out above, charges like an attempt to aid a person who aided another person who imported drugs remain theoretical.

Powers of Police and Customs officers

External body searches

Where there are reasonable grounds for suspecting that a person is carrying prohibited goods on their body, police and customs officers have powers to conduct external body searches [Customs Act 1901 (Cth) s 219Q]. Police and customs officers have the power to detain a person under these circumstances for the purpose of conducting such a search.

Internal searches

Where a person is suspected on reasonable grounds by a customs or police officer of internally concealing a suspicious substance they can detain the person for the purposes of conducting an internal search [Customs Act 1901 (Cth) s 219S]. An internal search must be authorised by a judge if the person has not consented [s 219V] and carried out by a medical practitioner [s 219Z].

An internal non-medical scan can be carried out if the person agrees [s 219SA].

Search must be made within 48 hours of order of detention

Where an application is made for detention for the purposes of conducting an internal search a judge or magistrate may order detention for a period of 48 hours from the time the detention began or the time the detention order was made [Customs Act 1901 (Cth) s 219T ]. Where the judge or magistrate does not make such an order the person being detained must be released immediately.

    Drug Offences  :  Last Revised: Fri Nov 10th 2017
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