It is a criminal offence to possess a dangerous and/or restricted drug in Queensland. It is also a criminal offence to possess a drug utensil, fail to dispose of a needle, and indeed anything used in the commission of a drug offence (such as clip seal bags and scales).
It is important to note that all cases turn on their own facts, and sentences handed down by Magistrates and Judges will vary depending on a number of factors. Drug offences in Queensland are dealt with in the Magistrates, District and Supreme Courts.
What it means to ‘possess’ a drug under the Queensland Law Whilst it may seem like a simple concept, the term “possession” can be quite complicated under the law. The Queensland Criminal Code defines possession as including,
“having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.”
That definition is pretty confusing! It basically means that a person must have knowledge and control of the drug that they are charged with possessing.
It’s important to note that the Queensland law has what is called a ‘deeming provision.’ Under section 129(1)(c) of the Drugs Misuse Act, all people classed as occupiers of a premises are deemed to be in possession of the dangerous drug.
An accused person must prove that they did not have knowledge or should not have reasonably had knowledge of the drug and its location. This is opposed to the Police needing to prove these elements against the accused, as is usually the case in criminal prosecutions.
Under the Health (Drugs and Poisons) Regulation it is an offence to possess a restricted drug.
Put simply, a restricted drug is a drug that can only lawfully be possessed with a medical script.
This is a low-level offence, dealt with in the Magistrates Court. The maximum penalty that can be imposed is a fine.
Dangerous Drugs are classified under the Drugs Misuse Regulation and charged under the Drugs Misuse Act. There are a number of dangerous drugs contained in the Regulations, perhaps the most common and well-known being cannabis and methamphetamines.
A Magistrate may direct a person who has pleaded guilty to a drug offence to complete a drug education session.
There are a number of eligibility requirements, including:
Factors that may influence the penalties available to the sentencing court include the defendant’s criminal history (particularly past drug offences), the type of drug, the total weight of the drug etc.
Sentencing may range from a drug diversion, fines, probation and/or sentences of imprisonment.
The offence of Possessing Dangerous Drugs is most commonly dealt with in the Magistrates Court, however in aggravated circumstances, the matter may need to be heard in the Supreme Court of Queensland (i.e. when it is a large quantity of the drug and there is an allegation of commerciality).
The Courts in Queensland have interpreted the term “supply” to include both giving/selling the drug to another person and to offer to supply a dangerous drug.
The type of drug dictates which Court must hear the matter. Supplying cannabis may be heard in the Magistrates Court but supplying methamphetamine must be heard in the District Court of Queensland.
Again, there are several penalty options available to a sentencing Court. It is considered a serious offence and depending on the circumstances of the offence and the defendant’s criminal history, imprisonment is a penalty option available to the Magistrate or Judge.
Trafficking is perhaps the most serious drug offence under the Queensland legislation. Police must prove that the accused “carried on a business” of supplying dangerous drugs.
It must be established by the Prosecution that there was an element of commercial gain. If a person is charged with Trafficking in Cannabis, the matter can proceed in the District Court of Queensland.
If a person is charged with trafficking in methamphetamine, the matter must proceed in the Supreme Court of Queensland.
When being sentenced for trafficking in dangerous drugs, the starting point is a term of imprisonment.
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