The Queensland laws that regulate the possession of illegal drugs are The Drugs Misuse Act and the Drugs Misuse Regulation. To determine the seriousness of drug possession, the law distinguishes by the quantity, type, and purpose of the drug possessed. For example, possession of a small amount of cannabis for personal use as compared to 50 grams of methylamphetamine for commercial sale, will have starkly different legal consequences for the defendant.
What is Commercial Possession?
The Drugs Misuse Regulation 1987 classifies drugs into schedule 1 and schedule 2. Then the quantity of each classification is split into three quantity scales, specified under schedule 3 and schedule 4. These classifications are relevant for the purposes of punishment.
The most common schedule 1 drugs are: types of amphetamines, cocaine, heroin, and anabolic steroids.
The most common schedule 2 drugs are: cannabis, alprazolam, codeine, diazepam, and hallucinogenic compounds.
Section 9 of the Drugs Misuse Act 1986 penalises drug possession in this manner:
In short, possession of a drug is presumed to be commercial if it is over 200 grams for schedule 1 drugs or over 500 grams for cannabis.
It is not always the quantity which is determinative of whether possession is commercial. Sometimes the prosecution will allege that a drug was possessed for a commercial purpose even if it is not over schedule 4. For example, if one person had 15 grams of methylamphetamine in his possession, then it is highly likely that the prosecution would allege there was at least the potential for the drugs to be applied in a commercial way. Another example might be where a person has 1.9 grams of cocaine in his possession, plus $2,500 cash, plus text messages on a phone which appeared to be arranging the supply of drugs. In such a situation, the prosecution would almost certainly allege that the drug possession was for a commercial purpose.
Which court would the case be heard in?
Possessing a schedule 1 drug in excess of schedule 3 or 4 – Supreme Court.
Possessing a schedule 2 drug in excess of schedule 3 – District Court.
Possessing a schedule 1 or 2 drug below schedule 3 – District Court.
All offences can be heard in the Magistrates Court, but only at the prosecution’s discretion. In our experience, it is not common for the prosecution to elect a summary/Magistrates Court hearing in instances where the drug (excluding cannabis) is in excess of 2 grams, and especially where there are allegations of commerciality. We will, however, always try to keep a client’s case in the Magistrates Court to minimise expense, delay, and penalty.
What is the Punishment for Commercial Possession?
Like with any sentencing, there is no one sentence which would be imposed for possession of dangerous drugs, because there are many different circumstances for these offences. They can include the quantity of the drug, the type of drug, whether the drug was possessed for a commercial purpose, whether there are other charges surrounding the drug [supplying, for example], the criminal history of the defendant, any rehabilitation undertaken, and other personal circumstances of the defendant.
Suffice it to say, actual imprisonment is available to the Court for these offences. The arguments of the defence lawyer tend to focus on whether the defendant should be released on parole the day of his sentence, or, if that is not possible, then minimising the time spent in actual custody.
Can I get Drug Diversion?
Drug diversion is available for some drug offences, but this is in relation to possession of small amounts of drugs for personal use, and it would be heard in the Magistrates Court. Drug diversion is not considered appropriate by the District or Supreme Court.
Conclusion
If you are charged with any kind of drug possession, but especially possessing larger amounts, we highly recommend quality representation. We at Clarity Law are highly experienced, and with over 100 happy clients leaving 5-star Google reviews, we are confident we can get you results.
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