Drug Offence Charges, Penalties Sentencing & Fines |Sydney Criminal Lawyers

Drug Offence Charges, Penalties Sentencing & Fines |Sydney Criminal Lawyers

Drug Offence Charges, Penalties Sentencing & Fines

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The laws relating to trafficking and cultivating a commercial quantity of drugs

May 1, 2013

All jurisdictions in Australia have legislation making it an offence to traffick or cultivate a commercial quantity of drugs. When looking at the laws of trafficking and commercial cultivation, there are a number of elements associated with the offence that this piece will explore.

The elements of the offence

There are two general elements associated with the offence of trafficking or cultivating a commercial quantity of drugs, which are:

  • the drug must be a commercial, or large commercial quantity; and
  • the accused has the intent to traffick or cultivate a commercial quantity.

Generally speaking, if a matter goes before the court, a jury must be directed on each element as was stated in DPP’s Reference No 1; R v Nguyen (2005) 2 VR 299; 154 A Crim R 360 (CA), which the court in a joint judgment said the following (at 308-309; 371 [23]):

“[T]he jury should be directed that in deciding whether the intention to traffick in a prohibited drug in not less than a large commercial quantity has been proved in their satisfaction they should have regard to any direct evidence as to that intention, but might also draw the inference that the accused had such an intention from the circumstances of the case. One such circumstance which would be capable, in itself, of proving the relevant intention would arise if they were satisfied that the accused knew there was a significant or real chance that the trafficking of the prohibited drug in which it has been proved he engaged would involve quantities of the drug not less than a large commercial quantity. Such a conclusion would enable them to draw the inference that the accused had the relevant intention to traffick in a large commercial quantity of the drug. The jury, however, would have to be told that whether they make those findings or draw the inference is a matter for them, and even if the inference is open to be drawn that the accused intended to traffick in a large commercial quantity of the drug, they could not so conclude beyond reasonable doubt if any other inference is reasonably open to be drawn. The jury might then be directed to adopt the same approach when considering, if it proves necessary, whether, in the alternative, intention to traffick in a commercial quantity of the drug has been proved.”

It’s illegal to manufacture drugs

It probably goes without saying that it is a criminal offence for a person to manufacture drugs without a licence, or make preparations in the manufacturing of drugs. Therefore, the question that should be asked is: What is the definition of ‘manufacture’?

Looking to a legislative example, under s 24(1) and (2) of the Drug Misuse and Trafficking Act 1985(NSW), defines manufacture and production of prohibited drugs as follows:

“(1) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug is guilty of an offence.
(1A) A person who:
(a) manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug, and
(b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,
is guilty of an offence.
(2) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
(2A) A person who:
(a) manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug, and
(b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,

is guilty of an offence. “

Turning towards case law, in McKeagg v The Queen (2006) 162 A Crim R (WA CCA), Murray AJA said the following, with agreement from the others:

“It is… appropriate, I think to give the word “manufacture” its ordinary English meaning of making something out of something different…Further, while you can be said to be manufacturing something while that process goes on and before the thing is finally created out of other material, you cannot, in my opinion… be said to manufacture a prohibited drug until you make the prohibited drug. That is the completed offence, the production of the drug.”

In McKeagg, the applicant although possessing the equipment and the ingredients to manufacture drugs, his conviction for manufacturing was set aside, and a conviction for attempt  was substituted instead.

If you have been charged with a Drug Offence you need to speak with a Sydney Drug Lawyer immediately 9261 8640