ACT Drug Offences

Contributed by David Hoitink, Legal Aid ACT and current to March 2022

A number of offences prohibit the possession, distribution and production of illicit drugs in the ACT.

The list of drugs to which these offences apply is set out in the Criminal Code Regulations 2005 (ACT).The list includes widely known drugs such as heroin, cocaine, methylamphetamine (‘ice’), methylenedioxymethylamphetamine (‘MDMA’) and cannabis, in addition to a significant number of less widely known drugs. The list is extensive and includes a number of derivatives of and precursors to illicit drugs. Particular offences use differing terms including “drug of dependence”, “controlled drug” and “prohibited substance” to refer to the particular drugs to which they apply, each of these terms is defined with reference to the Criminal Code Regulations 2005 (ACT).

Penalties for drug offences

In relation to a small number of offences involving the possession or cultivation of cannabis (specifically, the possession of 50 grams or less of cannabis, and the natural cultivation of 1 or 2 cannabis plants), police may serve an alleged offender with an ‘offence notice’, rather than formally summonsing them to attend court. If an offender pays the fine stipulated on the offence notice within the prescribed period their liability in relation to the offence is discharged and they will not be required to attend court or have a conviction formally recorded on their criminal history (s 171A(4) Drugs of Dependence Act 1989 (ACT).

In relation to other more serious drug-related offences, alleged offenders will be dealt with in either the ACT Magistrates Court or the ACT Supreme Court. Upon an offender being found guilty, or pleading guilty, the court will impose an appropriate sentence. ACT law provides a maximum penalty that can be imposed in relation to each particular offence. In considering the appropriate penalty to impose in an individual case, sentencing courts will consider a range of matters, including:

• the maximum penalty applicable to the particular offence;
• the nature of the drug;
• the quantity of the drug;
• the nature of the person’s involvement with the drug (for instance, whether it was manufactured, or possessed for the purposes of sale or supply, or for personal use);
• if applicable, the nature of the offender’s role in any distribution operation and their motive for that distribution (Bui v The Queen [2015] ACTCA 5 at [41]); and
  
• the offender’s personal circumstances and a range of other matters prescribed by legislation.

Possession offences

A range of offences apply to the possession of illegal drugs. A person possesses a drug for the purposes of these offences if they are aware of its presence and have an ability to exercise physical control over it (R v Sarlija (No 2) [2015] ACTSC 295). A person may be in possession of a drug even if it is not physically stored on their person, for instance if it is concealed in a hiding place which allows the possessor to exclude other people from accessing it (R v Stott (No 2) [2017] ACTSC 145 at [57]). A drug may be possessed by a single person, or jointly between multiple people, provided that the person or people in possession of the drug have control over it to the exclusion of people other than those with whom possession is shared (R v Rees [2006] ACTSC 27 at [12]).

A non-exhaustive list of offences criminalising possession of drugs, and the maximum penalties applicable to each offence, is set out below:

Offence	Legislative provision	Maximum penalty
Possess a drug of dependence	Drugs of Dependence Act 1989 s 169	Up to 2 years imprisonment and/or a fine of up to $8,000.
Possessing a quantity of cannabis not exceeding 50g in mass	Drugs of Dependence Act 1989 s 171AA(1)(a)	A fine of up to $160.
Possessing a prohibited substance	Drugs of Dependence Act 1989 s 171(1)(b)	Up to 2 years imprisonment and/or a fine of up to $8,000.

Distribution offences

There are a number of offence provisions criminalising the distribution of illegal drugs in the ACT. These distribution offences variously target the ‘trafficking’, sale and supply of illegal drugs.

Trafficking defined

The concept of drug trafficking is broadly defined under ACT law, and includes selling a drug, possessing a drug with the intention of selling it, preparing a drug for sale, and transporting or guarding a drug while intending to sell it or believing that another person intends to sell it (s 602 Criminal Code 2002 (ACT)).

The Criminal Code Regulations 2005 (ACT) prescribes ‘trafficable’ and ‘commercial’ quantities in relation to various illegal drugs. When an accused person is proved to have possessed, prepared, transported, guarded or concealed a trafficable quantity of a controlled drug, ACT law presumes that the person intended to sell the drug or believed that another person intended to do so (s 604 Criminal Code 2002 (ACT)). In circumstances where this presumption applies the accused person bears the burden of proving, on the balance of probabilities, that they did not intend to sell the drug or know that another person intended to do so. This represents a reversal of the burden of proof, which generally falls upon prosecuting authorities in all criminal proceedings.

A list of the specific offences criminalising the distribution of drugs, and the maximum penalties applicable to each offence, is set out below:

Offence	Legislative provision	Maximum penalty
Selling or supplying a prohibited substance, or drug of dependence	Drugs of Dependence Act 1989_ s 164	Up to 5 years imprisonment and/or a fine of up to $80,000.
Trafficking in a large commercial quantity of a controlled drug	Criminal Code 2002 s 603(1)	L ife imprisonment.
Trafficking in a controlled drug other than cannabis	Criminal Code 2002 s 603(7)	Up to 10 years imprisonment and/or a fine of up to $160,000.
Trafficking in cannabis	Criminal Code 2002 s 603(8)	Up to 3 years imprisonment and/or a fine of up to $48,000.
Supplying a commercial quantity of a controlled drug to a child believing that the child intends to sell any of the drug	Criminal Code 2002 s 622(1)	Life imprisonment.
Supplying a controlled drug to a child believing that the child intends to sell any of the drug	Criminal Code 2002 s 622(3)	Up to 25 years imprisonment and/or a fine of up to $400,000.

Production offences

A number of offences prohibit the production of illegal drugs in the ACT. These offences can be broadly categorised into those criminalising the manufacture of drugs, and those targeting the cultivation of controlled plants such as cannabis.

Manufacture

The concept of drug manufacturing is defined broadly under ACT law, and it includes any process by which the relevant drug is produced, including the extraction or refinement of the drug, or the process of transforming one substance into another (s 606 Criminal Code 202 (ACT)). A person may commit a drug manufacturing offence by personally participating in the manufacture of the drug, by exercising control over the manufacturing process, or by financing the manufacturing process (s 606 Criminal Code 2002 (ACT)).

Cultivation

ACT law defines cultivation of prohibited plants to include the planting of seeds, the nurturing or maintenance of the plants, and the guarding, concealing or harvesting of the plants. A person may commit a cultivation offence by personally participating in the cultivation, by exercising control over the cultivation process, or by financing the cultivation (s 615 Criminal Code 2002 (ACT)).

ACT law distinguishes between artificial and natural cultivation of cannabis plants. Significantly harsher penalties are applicable to low-scale artificial cultivation of cannabis plants than to low-scale natural cultivation in recognition of the greater size and potency of artificially cultivated cannabis plants (Explanatory statement to the Criminal Code (Serious Drug Offences) Amendment Bill 2004 (ACT), 22).

Artificial cultivation of cannabis involves the use of a hydroponic system, or the application of an artificial light or heat source (s 162 Drugs of Dependence Act 1989(ACT)).

A list of the specific offences criminalising the production of drugs, and the maximum penalties applicable to each offence, is set out below:

Offence	Legislative provision	Maximum penalty
Cultivating 3 or more cannabis plants	Criminal Code 2002 s 618(2)	Up to 2 years imprisonment and/or a fine of up to $32,000.
Artificially cultivating 1 or 2 cannabis plants	Criminal Code 2002 s 618(2)	Up to 2 years imprisonment and/or a fine of up to $32,000.
Cultivating (other than artificially cultivating) 1 or 2 cannabis plants	Drugs of Dependence Act 1989 s 162	A fine of up to $160.
Manufacturing a large commercial quantity of a controlled drug of the purpose of sale	Criminal Code 2002 s 607(1)	Life imprisonment.
Manufacturing a commercial quantity of a controlled drug for the purpose of sale	Criminal Code 2002 s 607(3)	Up to 25 years imprisonment and/or a fine of up to $400,000.
Manufacturing a controlled drug for the purpose of sale	Criminal Code 2002 s 607(5)	Up to 15 years imprisonment and/or a fine of up to $240,000.
Manufacturing a controlled drug	Criminal Code 2002 s 609	Up to 10 years imprisonment and/or a fine of up to $160,000.

Other drug-related offences

In addition to the above-mentioned offences, a number of other offence provisions criminalise various dealings with illegal drugs, including the administration of certain substances (s 37 Medicines, Poisons and Therapeutic Goods Act 2008 (ACT)), and the handling of certain classes of drugs, such as precursors and anabolic steroids.