A 19-year-old was allegedly found with 120 grams of psilocybin, better known as “magic mushrooms” and is facing a maximum of life imprisonment. The threshold for a charge of supplying a large commercial quantity of the drug is only 100 grams – a relatively low threshold in comparison to other prohibited drugs.
This has sparked conversation as to how the penalties under the Drug Misuse and Trafficking Act 1985, unlike other offences, vary based on the drug type and the amount present rather than the perceived ‘seriousness’ of the drug. These quantities are based on weight alone and the purity or concentration of the substance is not taken into account.
Accordingly, the severity of penalties increases incrementally as the amount increases, as defined in Schedule 1 of the Drug Misuse and Trafficking Act as small, trafficable, indictable, commercial and large commercial quantity.
Small Quantity of Prohibited Drug
A small quantity is the smallest classification. Unless there is specific evidence that a person had the drug to supply to another person if police found a small quantity of drugs on a person will normally be charged with drug possession.
Per section 10 of the Drug Misuse and Trafficking Act, it is an offence to possess a prohibited Drug. This offence carries a penalty of a maximum penalty of imprisonment for 2 years and/or a fine of $2,200.
If you are charged with possession of a prohibited Drug, the prosecution will have to prove beyond reasonable doubt that:
- You had possession of the prohibited drug;
- You had knowledge of the drug.
There is a defence to this offence if the prohibited drugs are found in a shared environment and the Prosecution cannot prove the sole possession of the drug by one person.
Traffickable Quantity of Prohibited Drug
The Drug Misuse and Trafficking Act 1985 contains a provision that ‘deems’ possession of a drug to be for the purpose of supply where the amount of the drug is equal to or more than the traffickable quantity. Once possession a traffickable amount of a drug is proved beyond reasonable doubt, the accused has the onus of proving on the balance of probabilities that he or she had the drug for a purpose other than supply.
If a person has more than the traffickable amount of drugs in their possession, even if they had no intention of supplying those drugs to another person they will be charged with drug supply due to the deeming provisions.
It is an offence under the Drug Misuse and Trafficking Act for a person who knowingly takes part in the supply of a prohibited drug. If a person is charged with deemed supply or actual supply of less than an indictable quantity of drugs the matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or a fine of up to $11,000.
Indictable Quantity of Prohibited Drug
When the possession of drug exceeds the indictable quantity as noted within the schedule, the matter becomes a strictly indictable matter and must be finalised in the District Court. It is an offence under the Drug Misuse and Trafficking Act for a person who knowingly takes part in the supply of a prohibited drug. The maximum penalty for the supply of an indictable quantity of drugs in the District Court is imprisonment for 15 years imprisonment and/or a fine of up to $220,000. It is important to note that the penalty is the same for deemed supply and actual supply.
Supply of prohibited drug
To prove supply, the prosecution must show beyond reasonable doubt that:
- A person supplied, or knowingly took part in supply, of
- A prohibited drug
A complete list of prohibited drugs is provided in Schedule 1 of the Drug Misuse and Trafficking Act 1985.
Knowingly “take part” is defined in the Act to include:
- Where a person takes, or participates in, any step, or causes any step to be taken, in the process of the manufacturer
- Where a person provides or arranges finance for any step in that process
- Where a person provides a premises in which any such step in the process is taken, or permits or suffers any such steps in that process to be taken in the premises of which the person is the owner, leasee or occupier or in the management of which the person participates
Penalties for the supply of a prohibited drug
The maximum penalty applicable to an offence of supply prohibited drug depends on the quantity of the drug as well as the whether the drug is cannabis or not, as the supply of cannabis is treated differently to other prohibited drugs.
The following table sets out the maximum penalties applicable to the different quantity ranges:
| Quantity | Cocaine | Methylamphetamine (‘Ice’) | Ecstasy / MDMA | Heroin | Psilocybin (‘Magic Mushrooms’) | Codeine | Maximum Penalty |
| Small | 1 g | 1 g | 0.25 g | 1 g | 0.04g | 5 g | 2 years imprisonment and/or a fine of $5,500 (if dealt with summarily) |
| Traffickable | 3 g | 3 g | 0.75 g | 3 g | 0.15 g | 15 g | 2 years imprisonment and/or a fine of $11,000 (if dealt with summarily) |
| Indictable | 5 g | 5 g | 1.25 g | 5 g | 0.25 g | 25 g | 15 years imprisonment and/or a fine of $220,000 |
| Commercial | 250 g | 250 g | 125 g | 250 g | 25 g | 2.5 kg | 20 years imprisonment and/or a fine of $385,000 |
| Large Commercial | 1 kg | 500 g | 500 g | 1 kg | 100 g | 10 kg | Life imprisonment and/or a fine of $550,000 |
If you or someone you know needs legal advice or representation for a criminal law matter, contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
