Drug offences are a critical component of criminal law. Drugs have become a large aspect of society and unfortunately the high level of drug use has raised the level of violence and criminal offending. Prohibited drugs can affect not only behavior but health and well being to a detrimental state which put thousands at risk every year.
Criminal offences of this nature carry considerable consequences and penalty units, including life imprisonment, and all matters must be taken seriously. If you have been accused or charged with a drug related offence you need to seek legal advice at the first possible opportunity. Penalty units for criminal offences can range from monetary fines to life imprisonment.
Jameson Law have a team of expert criminal lawyers ready and willing to assist you with any criminal law issues you may have.
What Is A Prohibited Drug?
An illegal or prohibited drug is classed as a substance which is not regulated. It can be harmful to both your health and well being and in many instances it can endanger your life due to the chemicals within the drug. Unlike prescription medication, illegal substances have no regulation regarding chemicals and ingredients and there is no oversight regarding the process. Examples of prohibited drugs are cocaine, amphetamines, cannabis, etc.
A common misconception among the public is that cannabis falls within a different class than that of other drugs. Whilst it is true that cannabis can be less harmful that harder drugs such as amphetamines, it is still an offence to possess the drug and ingest it. Cannabis has medicinal qualities which people turn to for pain relief and work is being done to regulate THC so that it can be used for medicinal purposes.
Prescription medication can be classed as an illegal or prohibited substance if it is taken without a valid prescription as the substances are still chemicals which can be harmful to health if not taken as prescribed. It is possible to overdose on these chemicals which can cause serious risk to health and even death.
It is an offence to possess any quantity of drugs whether that be for personal use or for commercial use. The use of drugs means that the individual can lose physical control of their mental and cognitive ability as well as their judgement. This more often than not leads to further criminal offending which can be both violent and non violent in nature. Whilst intoxication can be used as possible defences of criminal offending, a level of responsibility still needs to be attached.
How Serious Are Drug Offences?
Drug offences are some of the most serious criminal offences given the widespread danger it can pose to the community. Illegal drugs and even prescription medication, alters the way in which people act, behave, concentrate and react to certain situations. The quantity of the drug ingested will affect the amount that these things are affected however to some people, even a small amount can be detrimental.
The wide spread effect these drugs have on the community is evident within levels of criminal offending and violence. Traffic offences alone which involve drugs pose a significant safety risk to the community because of the impact a car accident can have.
There is otherwise a wider health risk involved when individuals possess and sell quantities of drugs within the community which affects the health and well being of every buyer. Unfortunately, statistics show a large number of teenager and minors buying and consuming drugs which at a young age can effect brain function and activity as well as vital organs. The consequences can be severe.
Matters are considered to be particularly severe when they involve children or minors as indicated above. Supply of drugs to minors is a serious act as children are classed as vulnerable members of society.
Case Study
Jason has been charged with trafficking, and possession of a prohibited drug. Unfortunately, Jason has been subject to prior charges of supplying drugs to minors and other possession charges. He has previously been granted a suspended sentence however he is unlikely to be given that again. His lawyers are confident he will receive a lengthy term of imprisonment if found guilty this time.
The prosecution want Jason to name his suppliers in exchange for a reduced sentence. Unfortunately, Jason does not know the names or details of his suppliers as everything is handled electronically and he has never met any of them. The prosecution are seeking several years imprisonment due to the traffickable quantity of drugs found in Jason’s possession.
There are also concerns about the amount of people who have overdosed on the drugs sold by Jason. The chemicals within the drug following analysis are extremely harmful. There were also small shards of glass within the substance which could cause death when ingested. Whilst it is not suspected that Jason had any involvement in the manufacturing process, if anyone die’s as a result of the substance, further charges may be added.
He is ultimately found guilty of drug trafficking and possessing a prohibited drug and sentenced to 4 years imprisonment. he will be eligible for parole after servicing a minimum of two years imprisonment.
Possession of Drugs
Possession of drugs relates to the amount or quantity in an individuals possession at the time of arrest. The difference in quantities will affect the severity of the charge and subsequently the severity of the consequences. Possession means that the drugs are found either on your person, within your body or within property that you own or is in your current possession. This is inclusive of prohibited plants such as cannabis plants.
Possession of drugs can often be difficult to argue as in order to be charged, the individual must have had drugs in his or her possession at the time of the arrest. You can have joint possession with other individuals depending on what context or environment the drugs are found. Physical possession refers to circumstances where the drugs are found on your person or inside your body.
Physical possession of a prohibited drug does not automatically mean that you can be charged with other offences such as trafficking or supplying drugs for instance. Possession of a prohibited drug may be for personal use depending on the quantity, and this is a lesser crime. If you only possess a quantity designed for you then the widespread danger to the community is restricted.
Drug Trafficking
Drug trafficking is a serious offence as it relates to the import and/or export of drugs inside or outside of the country. A traffickable quantity of drugs means that a large quantity of drugs is being exported or imported to suppliers. This may be within or outside the country which means it can have possible implications for international law principles.
The penalties for international law matters are subject to an entire different legal system than national criminal offending and the Trafficking Act would not necessarily apply. It depends on the situation as to what level the offending is classed as. Any offending committed at an international level of which a guilty verdict is found, will almost definitely result in a term of imprisonment.
Importantly, trafficking of drugs within certain countries is subject to their own independent legal system and you will not automatically be extradited back to Australia. Indonesia for example have harsh laws when it comes to drug related offences and their legal system is not considered to be as fair as the Australian System. Certain countries such as Indonesia also utilize the death penalty as a maximum penalty depending on the offence.
The type of prohibited drug will also be a relevant consideration. Marijuana for example is not as harmful as amphetamines or cocaine however a large commercial quantity of any drug and the consequences will be just as severe. Any breaches of the Trafficking Act are punishable by significant terms of imprisonment if not life imprisonment.
What Is A Controlled Drug?
A controlled drug is a substance which has specific rules and regulations regarding importation, exportation, supply and use. These types of substances are usually only able to be imported by medical personnel and there are considerable regulations which need to be followed. For example, the amount that can both imported and supplied is specified and there are strict guidelines regarding security of the substance and records of how the substance is administered.
Controlled drugs are usually medications which can only be prescribed by a doctor or medical professional. Therefore anyone who illegally imports, exports or supplies a substance without a prescription is classed as doing so with a prohibited drug. Likewise drug possession of this nature is serious as it falls outside the regulations specified by the Australian Government.
This is one of the core reasons why medical professionals will only prescribe a strict amount of any medication and will require follow up consultations with patients for repeat prescriptions. Controlled drugs usually have high street values as they are properly manufactured medications which are used as effective methods of pain relief. Unfortunately, this means that if/when they are used incorrectly for illegal purposes, they can cause serious risk of harm or death.
Penalties for possession of controlled drugs will be more severe the larger the quantity. For example, a large commercial quantity of controlled drugs could result in decades in prison whereas a non-commercial quantity may only result in a few years imprisonment. The Trafficking Act sets minimum and maximum penalties for different quantities of prohibited drugs.
Case Study
Jack has been found with cocaine in his possession as well as large amounts of cannabis. He is aware that possessing any illegal drugs or prohibited drug will result in significant penalty units because he has been convicted of drug offences previously. The police officer who arrested him is one who is known to him and he has arrested him previously for drug supply and possession of cannabis.
Jack has previously been subject to offences relating to possession of controlled substances, supplying to more than one person, cultivation of cannabis plants and breaches of the trafficking act. He has already served 2 terms of two years imprisonment for the prohibited plants and supply charges. He is aware that further offend could see him serve the maximum term of imprisonment.
Jack’s lawyer does not see that he has any possible defences for the offence of drug possession. The information and material available is solid and it will not be difficult for the prosecutor to prove the charge. Unfortunately, a search of his property resulted in a further seizure of 16 cannabis plants which is not a small quantity. The prosecutor and police are formulating a case against him for cultivation of cannabis as well as possessing the plants.
It is believed he intended to supply the drug given the large quantities he possessed. His lawyer believes it is likely the courts will sentence him to a lengthy term of imprisonment if found guilty. his best option is to seek a plea deal with the prosecutor. They agree that they will reduce his sentence from 15 years to 10 years imprisonment.
Court Process
The criminal justice system requires all criminal matters to go through the court process for a determination of guilt. If an individual chooses to plead guilty then they will only need to attend court for sentencing. If an individual chooses to plead not guilty then a full trial process will be needed to determine the outcome.
All criminal matters are subject to the reasonable doubt test when determining guilt. This means that each matter is assessed to see whether a reasonable person in the same situation would undertake the same actions and whether on the evidence it is proved that they did. The prosecutor must prove beyond a reasonable doubt that the actions alleged to have been committed were committed by the defendant. The defence has the task of trying to disprove this or rather to put holes in the evidence of presented by the prosecutor to create doubt.
Once all the information has been presented, the judge or jury will assess whether or not the prosecutor has made their case and they will decide whether they are guilty or not guilty of the charge. If guilty, sentencing will come afterwards. The jury are responsible for determining the verdict and the judge will then determine the sentencing to attach if the verdict is guilty.
Whilst the court will consider each charge individually, they are often presented together if they are related. For example, drug possession and drug trafficking will be considered within the same trial and a lot of the information will overlap. The separate elements of each charge however must be made otherwise a determination of guilt cannot be found.
This means that charges can be sentenced either individually or concurrently depending on the severity. Concurrent sentences will overall reduce the period of imprisonment but if sentences are served individually, then your term will be longer.
The purpose of sentencing is to both deter the individual from committing further offences and to deter the general community from committing similar offences. General deterrence against criminal offending is the overall aim of the justice system as it is hoped that there will be a decrease in criminal offending.
Unfortunately, drugs and drug offences have become a worldwide concern which statistically is only increasing with each passing year. There is only so much the court system can achieve in circumstances where the market is flooded with illegal substances.
Case Study
Alicia has been arrested for possession a controlled substance and being under the influence of drugs while driving a motor vehicle. Upon a search of her vehicle, police find a large commercial quantity of drugs under the back seat which means she will be charged with drug trafficking as well.
Alicia is at risk of a lengthy term of imprisonment as a result of these charges. She has a prior criminal history for drug related convictions and she has already served a term of imprisonment in another state. Given the commercial quantity found, the prosecution are seeking 15 years imprisonment.
Alicia’s lawyers are confident that she will be found guilty of the charges. The police have considerable evidence and it is understood they may have witnesses who will be providing evidence against her at the trial. Alicia may be able to negotiate a lighter sentence with the prosecution if she pleads guilty and there is no need for a trial. Additionally, if she is willing to give up names and details of her suppliers or others involved in the network, she may receive a reduction in her sentence.
Is There A Maximum Penalty for Drug Offences?
The maximum penalty for any criminal matter is a term of imprisonment or life imprisonment depending on the offence. Some terms of imprisonment are capped under legislation and they set the minimum and maximum penalty units that can be imposed. Penalty units can refer to years, monetary fines, etc.
It is important to know what the minimum and maximum penalties are for individual drug offences and the best way to obtain this information is through legal advice. The usual penalty units which could apply are;
- Monetary Fine;
- Suspended sentence;
- Home detention;
- Term of imprisonment including life imprisonment;
- Community Correction order;
If you are fortunate enough to be granted a community corrections order or a suspended sentence, there will be strict obligations and rules which apply. If further criminal offending is committed then that sentence could be revoked and a term of imprisonment imposed.
Similarly, home detention is subject to strict conditions and monitoring 24/7. Any breach of those conditions will see an immediate imprisonment. In many instances, home detention is only intended to be used during the court stage where an individual may be subject to bail. Bail is imposed when a criminal matter has not yet made it through court and a verdict decided yet the circumstances are such where a real threat could exist for either a specific individual or the wider community. Possessing large quantities of a prohibited drug or drug supply could be examples of that risk.
Multiple different penalty units can be imposed for any drug offences as the court often use more than one form of punishment when sentencing. This could for instance, be a term of imprisonment and monetary fine or it could be a period of good behavior and a court mandated program.
Case Study
Brittany has been charged with multiple drug offences, including cultivation of cannabis, possessing a large commercial quantity of methamphetamine and possessing a small quantity of heroine. She is suspected to be involved in a drug supply operation however she has not yet been charged due to a lack of proof.
She is due to appear before the Supreme Court and is aware she could face significant penalties if found guilty. Brittany has already served two separate terms of imprisonment for prior offences namely, 6 years for possessing a large commercial quantity of cocaine and 3 years for cultivation of cannabis.
The courts will likely seek to impose the maximum penalty if she is found guilty. Brittany does not have many possible defences as she will be unsuccessful in trying to prove that the drugs were solely for personal use.
After receiving legal advice, she decides to plead guilty to her offences and seek a plea deal with the prosecutor. They agree to a term of imprisonment of 10 years with a minimum of 7 years before she is eligible for parole.
Can My Drug Lawyer Appeal The Decision?
Every criminal law decision can be appealed and there is a specific appeal process which needs to be followed. An appeal is usually made to the court above the court which made the decision and this can be undertaken until the matter reaches the High Court of Australia. This is the highest court within the Australian jurisdiction and any decision made by this court stands.
If your matter reaches this Court it is usually influenced by what the High Court held in previous decisions as a base. Any appeal court can impose a lighter or heavier sentence in the event that they consider the defendant guilty and this is a risk you take when you choose to appeal.
Through the appeal process, every piece of information is re-assessed and re-weighted to see whether there is an arguable defence. The sentence you have already been given, for instance a term of imprisonment, will not cease during the appeal process.
It is important that you seek appropriate legal advice before appealing a decision as you could result in a worse outcome and you will need to know the applicable law for the process. This is a difficult thing to undertake without expert advice. You also need to be aware of any time limits that may be in place as appeals need to be filed quickly after a decision is made.
In a nutshell…
Drug possession, trafficking or any other drug related charge have serious consequences and the penalty units alone can be significant. The maximum penalty for drug related offending is a term of imprisonment. At its worst it will be life imprisonment. All circumstances of the offending will be considered however drug matters can often be black and white. If you have been found in possession of drugs for instance, it is hard to refute.
The overall purpose of the criminal justice system is to deter both individual and community offending, in this case, drug involved criminal offending. The level of import into the country is significant and large commercial quantities of drugs are available to all demographics including children.
Ultimately, if you commit any drug related offences, you have to be willing to pay the price. Drug offences are a serious matter and they should not be taken lightly.
If you have been accused or charged with a drug offence then you need to seek immediate legal advice to assist with the court process. Contact Jameson Law to talk to an expert drug lawyer today.
