Australian Capital Territory

In this guide 1 penalty unit (1 p. u.) is $150.

In the Australian Capital Territory illegal drugs are called drugs of dependence or controlled drugs or prohibited substances. Illegal plants are called controlled plants.

The definition of “drug of dependence” and “controlled drugs” extends to include substances which are chemical analogues of, or chemically related to, listed drugs of dependence or prohibited substances.

This may mean that new synthetic type drugs which are chemically derived from, or related to, a drug of dependence or prohibited substance or controlled drug will also be illegal even if it is not specifically listed in the schedules.

For offences involving drugs of dependence or controlled drugs or plants in the ACT the police have to prove that you knew, or should have known, that the drugs or plants were illegal drugs or plants.

General charges for being involved in a drug offence

Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:

• taking part in an offence if you are involved in the offence, even if you don't make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);

• being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by being a guard or security or a look out for a drug deal);

• aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., tell someone they can use your shed to grow cannabis in); or

• conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.

Generally police will not charge you with additional charges such as being an accessory to supply if you are a user and arrange to score off a dealer for your own personal use. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

Possession of a drug of dependence or a prohibited substance is an offence unless the drug has been lawfully prescribed.

Proving possession

There are three elements relevant to proving possession: knowledge, custody and control:

  • Knowledge means that you must know that the substance is a drug and that it is in your custody;
  • Custody usually means having the drugs in your physical possession (for example, in your pocket or wallet or under you pillow). However, custody can also extend to include such places as your house or car;
  • Control means that you have the right to do something with the drugs (for example, keep or use them).

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, the Court will infer you knew what it was.

 

Knowledge can be based on personal observation or information from another person. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.

 

There will be circumstances where, if you don't admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.

 

Do not admit to possessing drugs without speaking to a lawyer!

Custody and joint possession

Generally, if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned and had custody or control of the drugs, unless people make admissions.

 

The police must prove more than the fact that you knew drugs were there and that you didn't report the drugs or object to them being there. Therefore if you share a house and the police find drugs in non-private parts of the house (say, the kitchen, lounge room or bathroom), it can be difficult to establish who has the sole custody or control of the drugs.

 

However it is not impossible for police to prove that possession was jointly held.  Possession can be shared between people if there was agreement between them, (for example, say you and your flatmates have a stash that you all have access to). Shared, or joint, possession is generally hard to prove if no one admits to owning the drugs.

 

Possession without physical custody

In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.

 

If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.

 

Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don't have the keys with you at that time, police may not be able to show that you had custody and control.

 

You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.

 

If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.

Control

Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.

 

However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.

Temporary possession

Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.

 

If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the  'Carey defence'.

 

For more serious offences "possession" of a drug may also mean

  • receiving or obtaining possession of the drug;
  • having control over what is done with the drug (whether or not you have custody of the drug);
  • having joint possession of the drug with another individual.

 

 

Penalties

Possessing a drug of dependence, controlled drug or prohibited substance without authorisation or prescription is an offence.

 

                Maximum penalty: $7,500 (50 p.u.) and/or 2 years imprisonment.[1]

 

If you are caught in possession of less than 50 grams of cannabis, the maximum penalty is $150 (1 p.u.).[2]

 

[1] s 169 Drugs of Dependence Act 1989 (DODA)

[2] s 171 DODA

In the Australian Capital Territory illegal drugs are called drugs of dependence or controlled drugs or prohibited substances. Illegal plants are called controlled plants.

The definition of “drug of dependence” and “controlled drugs” extends to include substances which are chemical analogues of, or chemically related to, listed drugs of dependence or prohibited substances.

This may mean that new synthetic type drugs which are chemically derived from, or related to, a drug of dependence or prohibited substance or controlled drug will also be illegal even if it is not specifically listed in the schedules.

Drugs of Dependence (‘Controlled Medicines’) Controlled Drugs (‘Prohibited Substances’) Controlled Plants
  • MorphineMethadone
  • Ketamine
  • Amphetamine
  • Dexamphetamine
  • Buprenorphine
  • Cocaine
  • Coca Leaf
  • This list does not contain all drugs of dependence. The full list of all substances can be found listed in Criminal Code Regulations 2005 Schedule 1under the heading “Part 1.1 Controlled medicines.
  • Heroin
  • Cannabis
  • THC cannibinols
  • Cathinone (MCAT)
  • PCE
  • PCP
  • LSD
  • Ecstasy/MDMA
  • DMT
  • GHB
  • Meth-amphetamine/ice
  • Mescaline
  • N-BOMe (N-Bomb)
  • JWH Synthetic Cannibinols
  • Mephedrone (bath salts)
  • This list does not contain all controlled drugs. The full list of all substances can be found listed in Criminal Code Regulations 2005 Schedule 1under the heading “Part 1.2 Prohibited substances.”
  • Cannabis leaf, bud, seeds, resin, oil etc.Magic Mushrooms (psylocibe and cubensis)Amanita mushrooms
  • Peyote
  • Opium poppies
  • Salvia Divinorum
  • Khat
  • Kava
  • This list does not contain all controlled plants. The full list of all substances can be found listed in Criminal Code Regulations 2005 “Schedule 2 Controlled plants.

A mixture of substances which contains an amount of a drug of dependence or controlled drug will be regarded as an illegal drug. This means that if you sell cocaine cut up with washing powder you can still be charged.

Rules for determining total quantities of different drugs or mixtures of drugs for the purpose of determining which offence you will be charged with, which Court your case will be heard in, and what penalty you face on conviction, are very complicated.

In April 2014 the ACT moved from a pure weight system of calculating threshold quantities for trafficking offences to a mixed weight system. Previously the ACT would be required to analyse all drug samples (e.g., pill, tablet, cap, point, joint, mixture) seized from a person charged with a drug offence to assess the purity of the drug.

Now, ACT police and prosecutors take the total weight of the seized drug sample (e.g., pills, tablets, caps, points, joints, mixtures or preparations) to be the total quantity of drug of the dependence or controlled drug when charging you.

The purity of the drugs is not relevant when determining what quantity of drug you possess and therefore what charge you face in court (e.g., possession for personal use or trafficking).

This means that it doesn’t matter how pure your drugs or drug mixtures are. The prosecution only has to show that the weight of the pills, tablets, caps, points, joints, or other mixture is greater than the traffickable quantity for you to be charged with trafficking.

In the ACT amounts of different drugs can be also added (aggregated) together so that you can face higher penalties for drug offences even if you possess, supply, traffic or manufacture small quantities of a lot of different drugs.

The law specifies that where the required fraction of each drug you are found with, adds up to a whole number greater than 1, you will be charged with an offence based on a higher aggregated quantity. For example, if you are charged with trafficking a number of different drugs, the prosecution will calculate the ‘required fractions’ of the quantity of each pure drug by dividing the amount of the pure drug you traffic with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity.

For example if you possess 1g of heroin and the trafficable quantity is 2g the prosecution will divide 1 by 2 to give a fraction of ½. If you are also found in possession 1.5g of ice where the trafficable quantity is 2g the prosecution will divide 1.5 by 2 to give a fraction of ¾. The prosecution would then add ½ plus ¾ to give 1¼ which is greater than 1. So you would be charged with a single offence of trafficking a trafficable quantity of a controlled drug, even though separately the quantities were each less than the trafficable quantity.

No. The perceived harm potential of a drug is NOT relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic). A court might take your motives and aggravating circumstances (see ‘Aggravating circumstances’ section below) into account when sentencing you for an offence, but certain drugs of dependence or controlled drugs should not be treated as more or less harmful than others.

For example, if you possess 5g of heroin, and your friend possesses 5g of cocaine in the same circumstances, you should both be subject to the same charge of trafficking and receive a similar penalty. You should not be punished more severely for possessing drugs like heroin or ice, which are considered to be ‘really harmful’, ‘more evil’ or ‘harder drugs’ than for ‘party drugs’ like cocaine or ecstasy.

You should not be punished more severely for some drugs than for others based only on a ‘scale’ of the perceived harm of different drugs.

Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:

  • taking part in an offence if you are involved in the offence, even if you don’t make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);
  • being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by being a guard or security or a look out for a drug deal);
  • aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., tell someone they can use your shed to grow cannabis in)or
  • conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.

Generally police will not charge you with additional charges such as being an accessory to supply if you are a user and arrange to score off a dealer for your own personal use. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

Possession of a drug of dependence or a prohibited substance is an offence unless the drug has been lawfully prescribed.

Proving possession

There are three elements relevant to proving possession: knowledge, custody and control:

  • Knowledge means that you must know that the substance is a drug and that it is in your custody;
  • Custody usually means having the drugs in your physical possession (for example, in your pocket or wallet or under you pillow). However, custody can also extend to include such places as your house or car;
  • Control means that you have the right to do something with the drugs (for example, keep or use them).

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, the Court will infer you knew what it was.

Knowledge can be based on personal observation or information from another person. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.

There will be circumstances where, if you don’t admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.

Do not admit to possessing drugs without speaking to a lawyer!

Custody and joint possession

Generally, if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned and had custody or control of the drugs, unless people make admissions.

The police must prove more than the fact that you knew drugs were there and that you didn’t report the drugs or object to them being there. Therefore if you share a house and the police find drugs in non-private parts of the house (say, the kitchen, lounge room or bathroom), it can be difficult to establish who has the sole custody or control of the drugs.

However it is not impossible for police to prove that possession was jointly held. Possession can be shared between people if there was agreement between them, (for example, say you and your flatmates have a stash that you all have access to). Shared, or joint, possession is generally hard to prove if no one admits to owning the drugs.

Possession without physical custody

In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.

If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.

Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don’t have the keys with you at that time, police may not be able to show that you had custody and control.

You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.

If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.

Control

Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.

However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.

Temporary possession

Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.

If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the ‘Carey defence’.

For more serious offences “possession” of a drug may also mean

  • receiving or obtaining possession of the drug;
  • having control over what is done with the drug (whether or not you have custody of the drug);
  • having joint possession of the drug with another individual.

Penalties

Possessing a drug of dependence, controlled drug or prohibited substance without authorisation or prescription is an offence.

Maximum penalty: $7000 and/or 2 years imprisonment.

If you are caught in possession of less than 50 grams of cannabis, the maximum penalty is $100.

If you self-administer (use) or administer to someone else a drug of dependence, controlled drug or prohibited substance without authorisation you are committing an offence. It is illegal to inject another person even if they have asked you to or given you consent.

It is also an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine, and methadone without following the doctor’s or pharmacist’s directions for use. This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose.

Maximum penalty: $14,000 and/or imprisonment for 1 year.

Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Remember that any statements you make to police form part of the evidence that can be used against you. No conversation with police is ‘off the record’. For more information on your legal rights see the section on general legal information.

If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don’t admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.

Do not admit to using drugs without speaking to a lawyer!

If you administer a prohibited drug to another person who subsequently dies from an overdose (‘OD’) you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Police will not normally attend an overdose unless:

  • they are requested to do so by ambulance paramedics or medical personnel (because ambulance officers cannot control people present at the scene or due to a threat of violence);
  • a death has occurred or there are suspicious circumstances (like attempted murder); or
  • they were the first on the scene or the OD occurred in a public place.

Police guidelines direct police who do attend an overdose to use their discretion not to charge people at the scene or the person who overdoses with administration or other minor drug offences such as possession.

It is illegal to sell or supply a drug of dependence or a prohibited (controlled) substance or plant without lawful authority. It is also illegal to possess a drug of dependence or a prohibited substance for the purpose of selling or supplying it to another person.

Because sharing a deal or helping someone score is part of drug-using culture, many users act as suppliers from time to time.

It is an offence to supply a prohibited drug without lawful authority. Supply has a very broad definition and you could be guilty of an offence even if no drugs or money change hands.

Supply can include:

  • offering or agreeing to supply, even if no deal ever takes place;
  • being knowingly concerned in supply, for example, introducing someone to a dealer;
  • supplying a legal substance that you claim is a prohibited drug, for example, selling aspirin and passing it off as heroin;
  • pooling money and splitting up purchased drugs between the group of buyer;
  • having drugs in your possession for the purpose of supply.

If you are caught with drugs in your possession, police are more likely to charge you with supply if they find things like scales, deal bags, and cash.

A charge of supply can even rest on an offer to score on another person’s behalf. It doesn’t matter whether or not there is any money involved. There are also a number of other charges that can be made in relation to supply, including charges relating to participating in supply and conspiracy to supply (however you cannot be convicted of conspiracy if you are only buying).

If a person is found in possession of a trafficable quantity of drugs, an intention to traffic will be presumed. In this case the court will automatically believe that you intended to sell the drugin the absence of proof that you didn’t intend to traffic the drug, which may be hard to provide. This is called deemed trafficking.

Sale or supply or intention to sell or supply a drug of dependence or prohibited substance is an offence.

Maximum penalty: $70,000 and /or imprisonment for 5 years.

Trafficking is the offence of selling larger amounts of a drug of dependence or controlled substances or plants. Trafficking has a wide meaning in the ACT.

You can be charged with trafficking in a controlled drug if you –

  • sell the drug,
  • prepare or pack the drug for sale or for someone else to sell,
  • intentionally transport or deliver the drug,
  • guard or hide the drug with the intention of selling it,
  • possesses the drug with the intention of selling any of it.

In April 2014 the traffickable, commercial and large commercial quantities of all drugs of dependence, controlled drugs and controlled plants were changed. The ACT also moved to a mixed weight system of calculating drug quantities. This means that the trafficking quantities were increased for some common drugs (ecstasy & cocaine) but were reduced for other common drugs (heroin and meth-amphetamine).

This means that you may be more likely to be charged with trafficking in heroin or meth-amphetamine, even if you have possession of those drugs for personal use.

Drug Previous ACT trafficable quantity (pure grams) Previous ACT trafficable quantity (converted to mixed grams) Proposed ACT trafficable quantity (mixed grams)
Heroin 2 grams 8.1 grams 5 grams
Meth-amphetamine (ice) 2 grams 20 grams 6 grams
Cocaine 2 grams 3.3 grams 6 grams
MDMA (ecstasy) 0.5 grams 3.3 grams 10 grams
Cannabis 300 grams (mixed) 300 grams (mixed) 300 grams (mixed)

Trafficking of a certain amount of a drug or controlled plant doesn’t have to occur all at once. You can be charged with trafficking a greater amount than you actually did, if it is proved that you trafficked the controlled drug or plant more than one time, or repeatedly.

If you traffic in more than one controlled drug or plant, there are rules that will allow the police to count the different quantities to make up a combined total. This means that if you traffic two small quantities of different drugs, they can be counted as one larger amount, which means you might face higher penalties.

The law specifies that where the required fraction of each drug you are found with, adds up to a whole number greater than 1, you will be charged with an offence based on a higher aggregated quantity. The prosecution will calculate the ‘required fractions’ of the quantity of each pure drug a person traffics by dividing the amount of the pure drug you traffic with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity.

For example if you traffic 1g of heroin and the trafficable quantity is 2g the prosecution will divide 1 by 2 to give a fraction of ½. If you are also found trafficking 1.5g of ice where the trafficable quantity is 2g the prosecution will divide 1.5 by 2 to give a fraction of ¾. The prosecution would then add ½ plus ¾ to give 1¼ which is greater than 1. So you would be charged with a single offence of trafficking a trafficable quantity of a controlled drug, even though separately the quantities were less than the trafficable quantity.

The perceived harm potential of a drug is not relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic) but may be taken into account when you are being sentenced.

Proof that a person has prepared (for example by packing or dividing up into doses) a trafficable quantity of a controlled drug for supply, transported, guarded or concealed, or possessed gives rise to a presumption that there was intention or understanding that the drug was to be sold. This presumption can be disproven by evidence.

Penalties

Trafficking in a large commercial quantity of a drug of dependence or controlled drug:

Maximum penalty: imprisonment for life.

Trafficking in a commercial quantity of a drug of dependence or controlled drug:

Maximum penalty: $350,000 and/or imprisonment for 25 years.

Trafficking in a trafficable quantity of cannabis or trafficking in less than a trafficable quantity of a drug of dependence, or a controlled drug other than cannabis:

Maximum penalty: $140,000 and/or imprisonment for 10 years.

Trafficking in less than a trafficable quantity of cannabis:

Maximum penalty: $42,000 and or imprisonment for 3 years.

Trafficking Trafficable mixed quantity (grams) Commercial mixed quantity (grams) Large commercial mixed quantity (grams)
Drug Maximum penalty: $140,000/ 10 years Maximum penalty: $350,000 /25 years Maximum penalty: Life
Cannabis 300g 30000g 150000g
Cannabis oil 25g 2500g 12500g
Cannabis resin 25g 2500g 12500g
Cannabis Plants 10 plants 100 plants 1000 plants
Methadone 400g 200000g 400000g
DMT 10g 5000g 10000g
Amphetamine (speed) 6g 3000g 6000g
Dexamphetamine (Dexies) 6g 3000g 6000g
MDMA (ecstasy) 10g 5000g 10000g
Buprenorphine 0.06g 30g 60g
2CB 10g 5000g 10000g
GHB 0.5g 250g 500g
Cocaine 6g 3000g 6000g
Ketamine 6g 3000g 6000g
Meth-amphetamine (Ice) 6g 3000g 6000g
Morphine 20g 10000g 20000g
Opium 30g 15000g 30000g
Heroin 5g 2500g 5000g
LSD 0.003g 1.5g 3g
PCP 0.0075g 3.75g 7.5g
Psylocibin (Magic Mushrooms) 2g 1000g 2000g
Tetrahydro-cannabinols (THC) 2g 1000g 2000g
N-BOMes 10g 5000g 10000g
Mephedrone 6g 3000g 6000g
Methcathinone (M-Cat) 6g 3000g 6000g
JWH Cannibinols 3g 1500g 3000g
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Canberra ACT 2601
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