Most countries prohibit the possession of drugs and drug paraphernalia. In Australia, it is against the law to traffic, cultivate, possess, or use any drug prohibited by the law. Although the usage and possession of minute quantities of illegal drugs are punished with lesser penalties, cultivating and trafficking drugs are heavily punished to prevent any large mishaps among the people. This is where drug offences and possession vary.
There are extensive lists of drugs under the Drugs, Poisons and Controlled Substances Act of 1981, among the most common of which are MDMA (commonly known as Ecstasy), LSD, cocaine, amphetamines, heroin, and cannabis (commonly known as marijuana). Below we discuss drug offences and drug possession and the steps to take.
Illegal drug possession
Possession of illegal drugs is the crime with the most number of offenders when it comes to drug offences. Under the law, the term possession means the act of having the drug within a person’s vicinity, property, or control. It includes growing marijuana on your field or garden. In addition, you can be accused of such a crime if you have these substances in your car.
If even small quantities of these drugs happen to be seen in your possession and it is your first offence, you will not be charged immediately but only given a warning not to commit the same act again. However, this is still under the police informant’s discretion. After the warning, you will be compelled to go to a drug treatment center and undergo drug counseling. If you do not agree, you will be charged for possession of drugs.
Whether you are guilty or not depends on the given facts, circumstances, and evidence that will support your case. Bear in mind that if you are charged with possession of prohibited drugs, you may also be charged for its use, which includes swallowing, injecting, or smoking illegal drugs, as well as inhaling fumes. Likewise, you can be charged of using illegal drugs if you admit such, even though the police apprehenders did not catch you in the act.
In addition, the quantity of the illegal drugs found in your possession will affect the type and severity of the penalty imposed.
Proof of evidence and options available
When you are charged with such crimes and is about to undergo trial, it is important that you and your lawyer obtain and prepare substantial evidences to support your claim. For the prosecution, the police department must prove the following facts and circumstances:
- The substance used or found in your possession belongs to the lists of prohibited drugs.
- The substance is found within your control or possession.
- You are the offender in this case.
- The crime occurred at a certain place and time.
Apart from the evidences you will present, the possible defence you have are the following:
- The substance charged was not the correct drug found during the apprehension
- The substance was not in your possession
- The substance was planted by someone in your area
As for your options in court, you may either plead guilty, not guilty, or you can accept the charges against you and ask the court for a possible diversion program. This program means that your drug case shall undergo a different process as compared to others. It can be availed of only for charges involving less serious cases as when you possess small quantities of drugs. When you undergo a diversion program, no criminal record will be placed under your name.
Drug offences & penalties
If you are found guilty of the crime of drug possession, the Magistrate may, at the least, impose a mere fine without imprisonment. However, this will still depend on the quantity of the drug you are using or are in possession of. For example, if you pleaded guilty to a charge of drug possession of up to 40 grams, the Magistrate can merely penalise you with fines, according to the appropriate penalty units provided under the law. You can fulfill the payment of the fine at the Magistrate’s court and seek assistance from the counter staff help. If you don’t have the means to pay the fine, you can ask the Magistrate to subject you to community service instead.
You may also need to persuade the court of justice that you had no intent to sell the drugs when you were found in possession of them. This is essential if you are apprehended of possessing a large quantity of drugs. The court can also direct you to be placed under a specific program where you must behave well for a specific amount of time. It may be attached with certain terms and conditions like compelling you to undergo drug treatment and counseling. When deciding on whether to fine or subject you to imprisonment, the court has the following guidelines:
- If you have any criminal records
- Whether you have been found to be addicted to drugs
- If you have been guilty of crimes of a similar nature
- How serious the crime you committed was
You should also know that the Magistrate can identify that individuals who are highly addicted to prohibited drugs require support and much help to overcome this addiction. If the Magistrate considers that you require professional help and treatment for your addiction, he or she may refer you to the bail support program or the services of CREDIT. You can also avail of the Court Integrated Services Program.
If you are found guilty, a forfeiture process may apply to your case. If the police seized a prohibited drug, the prosecutor can apply for a forfeiture order in order to confiscate the substance and subject it to further examination.
The most awful thing that will happen when you get caught, apart from imprisonment, is that you will get a criminal record. Once you have a criminal record, it will be harder for you to acquire a visa to other countries. You will also most likely have a hard time looking for a job, since everyone can see that you have committed a crime.
However, once you are convicted of such a crime, you can still appeal the case to the Country Court for a period of 28 days from the Magistrate’s decision.
When you are charged of any prohibited drug offence, you can be subject to a fine, community service, undergo a diversion program, get a criminal record, or be sentenced to prison; hence, it is best for you to know your rights and the corresponding laws and penalties in relation to the offence.
If you happen to get involved with any drug offences, don’t hesitate to contact us.