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If you are convicted of a drug charge, the negative impacts will exceed not just a criminal record.
A drug conviction will likely affect your employment prospects, your ability to take out a lease on a home, and your freedom to travel to certain parts of the world. Many countries, such as the US and Canada, deny entry to a person with drug convictions.
The quantity of the drugs can significantly affect the result of your case because the quantity of the drugs can impact how the police decide to prosecute you.
Drug charges then, require the careful assessment and representation of a specialist drug charge defence lawyer to increase your chances of avoiding being charged unlawfully or incorrectly and avoiding a criminal record that may play havoc with your future.
Don’t risk getting poor advice and representation from an inexperienced lawyer who doesn’t put in the time and effort required for your case. Engage Andrew Williams to defend, mitigate and resolve your drug charges.
With over 19 years experience as a criminal lawyer defending people charged under WA’s anti-drug laws, Andrew Williams provides powerful and effective representation to people charged under the Misuse of Drugs Act WA and the Commonwealth Criminal Code.
Contact our offices immediately on (08) 9278 2575 to discuss your options and get the best representation for your case.
Learn more about drug offences in Western Australia and what they mean for anyone who has been charged with this offence:
Drug charges occupy a significant volume of work at Andrew Williams Criminal Law Offices.
Andrew Williams has extensive experience in representing clients in a wide range of drug offences which include:
For more detailed information on how Andrew Williams can assist with your matter, read our article ‘ Advice from a Perth Drug Charge Defence Lawyer.
Perhaps the most commonly prosecuted drug charge in our Western Australian Courts is possession of a prohibited drug with intent to sell or supply. This drug offence is the subject of a huge caseload of matters that move through the District Court.
This section provides insight into the meaning of the charge of possession of a prohibited drug with intent to sell or supply, what the prosecution is required to prove; and in which court your matter is likely to proceed in.
The elements that the prosecution must prove are as follows:
You cannot possess a prohibited drug without knowing of its existence. For example, if someone asks you to hold on to their bag and you do so without knowing that there are drugs contained in the bag then, even though the bag might be in your physical custody, you will not be guilty of possessing the drug.
You can possess illicit drugs by having actual physical custody of the drugs or by having control or dominion over the drugs. In other words, you can possess a prohibited drug by physically having the illicit drug on your person. But you can also be found to possess a prohibited drug even if you are not physically holding the drug. A person who has control or dominion over an illicit drug has the drug.
For example, if the drugs were located in a safe to which only one person had access, that person would have control and dominion over the drugs and therefore will likely be found to be in possession of the drugs.
For simple possession of a prohibited drug to be established, there must also be evidence of an intention to possess a “drug” within the ordinary meaning of that word. You cannot be found to possess a prohibited drug if you do not intend to possess the drug.
To prove a drug possession charge it’s not necessary for the prosecution to prove the accused’s actual knowledge of the prohibited drug. The prosecution is only required to prove that the accused had an awareness that the substance that they possessed was “likely” to be a prohibited drug.
For example, if the drug charge is related to methylamphetamine, the prosecution need not prove that the accused knew that what was in their possession was methylamphetamine. The prosecution need only prove that the accused knew, in the sense that there was a real or significant likelihood, that what was in their possession was a drug.
More than one person can possess drugs if they both have knowledge of the drugs and can be shown to have both exercised dominion and control over the drugs.
People are often jointly charged with the same offence of possession of a prohibited drug. Possession does not have to be exclusive to one person. Two or more persons can jointly possess one quantity of a drug at the same time, although the nature of their possession may be different.
For example, one person may possess a drug because of having intentional physical custody of the drug while another may have that same quantity of drug by having intentional control or dominion over the drug even though the drug is in the physical custody of the first person. Two or more people can also jointly possess one quantity of a drug at the same time by reason of them both having intentional control or dominion over the drug.
The word “sell” carries its ordinary meaning of exchanging prohibited drugs for money.
The word “supply” is wider in its meaning and includes to give, deliver, dispense, distribute, forward, make available, furnish, provide, return, post or send. It doesn’t matter that the drug is supplied on behalf of another or on whose behalf it is supplied.
A person can be charged and convicted of a charge of possession with intent to sell or supply based on the quantity of the prohibited drug that they possessed. Schedule V to the Misuse of Drugs Act operates to presume that a person intends to sell or supply the drugs if that person is found in possession of a quantity of the drug that exceeds a specified weight.
For example, a person who possesses not less than 2 grams of methylamphetamine is, under the law, presumed to have an intention to sell or supply that drug irrespective of whether there is evidence to infer that they were selling or intending to sell the drugs. So, what may be a simple possession of a drug offence becomes the more serious offence of possession with intent to sell or supply.
Where the legal presumption of intent to sell or supply arises and the accused refutes the allegation of an intention to sell or supply, the law places an onus on the accused to rebut the presumption. In these circumstances, the accused is required to prove, on the balance of probabilities, that they did not intend to sell or supply all or a portion of the prohibited drug to another.
The legal presumption of intent to sell or supply can be overcome if the accused can provide convincing evidence that the drugs were possessed for a reason other than an intention to sell or supply.
However, there are sometimes features of significance that are overlooked by those seeking to do so. The existence of items like large sums of cash, text messages located on a mobile phone, “tick” lists of money amounts owed by people, multiple clip-seal bags and scales will likely make it difficult for an accused to rebut the presumption of an intention to sell or supply.
A drug trafficker declaration can be made when an offender has committed:
1. Three or more serious drug offences within 10 years, irrespective of the quantity of the relevant prohibited drugs or the number of the relevant prohibited plants (as the case may be).
2. One serious drug offence at any time, if the quantity of the prohibited drug exceeds the quantity specified in Schedule VII of the Misuse of Drugs Act in relation to that drug or the number of prohibited plants exceeds the number specified in Schedule VIII of the Misuse of Drugs Act about that plant.
When a person is convicted of a serious drug offence to which a drug trafficker declaration can be made, it is immaterial that the person asserts, or the court finds, that some of the prohibited drugs were for that person’s own use. This feature may however be relevant to the sentencing outcome.
Being declared by a court to be a drug trafficker may impact the penalty for the charge or the charges the person is convicted of. For example, the maximum penalty under the Misuse of Drugs Act for the offence of possession with intent to sell or supply is significantly increased when there is a trafficable quantity involved.
Also, when a drug trafficker declaration is made it enlivens s.8 of the Criminal Property Confiscation Act 2000 (WA) (the CPC Act). When a person is declared to be a drug trafficker the property of that person can, under the CPC Act, be confiscated including:
The effect of such a declaration is extremely serious and any person who has been charged with an offence where they are staring down the barrel of a drug trafficker declaration should seek urgent and immediate legal advice.
If you are charged with the offence of possession of a prohibited drug with intent to sell or supply, some important questions require clarification:
The following table sets out particular drugs and the threshold amounts under the Misuse of Drugs Act WA that provide an answer to the above questions:
| Prohibited Drug | Amount giving rise to an intention to sell / supply | Amount determining court of jurisdiction | Amount giving rise to a trafficking declaration |
|---|---|---|---|
| Methyl amphetamine | 2 grams | 4 grams or more is indictable and proceeds to the District Court | 28 grams |
| Cocaine | 2 grams | 4 grams or more is indictable and proceeds to the District Court | 28 grams |
| MDMA | 2 grams | 4 grams or more is indictable and proceeds to the District Court | 28 grams |
| Cannabis | 100 grams | 500 grams or more is indictable and proceeds to the District Court | 3 kilograms |
| Cannabis Plants | 10 plants | 20 plants or more is indictable and proceed to the District Court | 20 plants |
There are numerous drug rehabilitation facilities in Perth.
If you have been granted bail for a drug offence and have subsequently found a placement in a drug rehabilitation facility, you can vary your bail conditions to change your address so that you can commence rehabilitation.
Because drug charges are a serious matters and carry very tough penalties if convicted in Western Australia.
The type of drug, and in particular the quantity/weight of the drug. The greater the quantity, the more serious the charge.
The maximum penalty depends on the offence and the type of drug involved. For example, if the offence is simple possession of a prohibited drug the penalty will be significantly less severe than if the charge involved allegations of intent to sell or supply.
Furthermore, the penalties reflected in cases involving significant illicit drugs such as methylamphetamine, cocaine, MDMA and heroin are more significant than the penalties reflected in cases involving cannabis.
A person facing drugs charges involving an intent to sell or supply carry a significant risk of being subject to a term of immediate imprisonment.
In Donaldson v The State of Western Australia [2018] WASCA 143 the appellant was convicted of possession of methylamphetamine with intent to sell or supply where the quantity of the drugs was 5.69 grams. The appellant in that case was sentenced to 2 years and 3 months immediate imprisonment.
In Jones v The State of Western Australia [2018] WASCA 105 the appellant was convicted of possession of methylamphetamine with intent to sell or supply where the quantity of the drugs was 5.15 grams.
The appellant in that case was sentenced to 1 years and 8 months immediate imprisonment.
The Drug Court operates out of the Perth Magistrates Court. The Drug Court deals with offenders who have committed criminal offences where the catalyst for the offending is drug addiction.
The drug court aims to achieve rehabilitation of the offender by facilitating treatment as a key part of the penalty which meets the expectations of the community.
By placing a firm focus on treatment, the drug court aims to:
Offenders who participate in Drug Court programs are subject to strict bail conditions throughout the course of the drug court program. These conditions usually involve regular reporting, drug tests and court attendances.
Drug driving is a serious matter, particularly if the offence involves The driving under the influence of drugs to such an extent as to be unable to have proper control of the vehicle.
Separate laws under the Road Traffic Act WA make it an offence to have illicit drug or drugs detected in your system at the time of driving. In these circumstances there is no need for the prosecution to demonstrate that you were “incapable of having proper control of the vehicle”. It is sufficient that drugs were detected in your oral fluid or blood at the time of driving
WA has also recently introduced a separate offence to drive with a mixture of blood alcohol reading in excess of 0.05 AND also test positive to having a prescribed illicit drug in the oral fluid or blood. Such an offence will result in licence disqualification for a minimum of three months.
Find out more about drug driving offences
It is highly unlikely that you would ever be charged simply for being under the influence of drugs or having drugs in your system. However having drugs in your system may have implications in relation to circumstances such as breaching a bail condition (not to use illicit substances), or being charged for other offences such as disorderly conduct or drug-driving (Driving with Prescribed Illicit Drug in Oral Fluid, or Drug Impaired Driving under the Influence of Drugs).
You must be in possession of drugs to be charged with ‘possession of a prohibited drug’. However – you must have had knowledge of the existence of the drug and also intended to be in possession of the drug. Furthermore the prosecution must prove that you had ‘control’ or ‘dominion’ over the drug.
In certain circumstances you can also be charged with an “attempt” to possess a prohibited drug.
If a drug dog gives a positive indication, police may use that as a basis to search you - but you still have legal rights. Find out what police can and can't do during a drug dog search.
Drug charges are serious matters and carry tough penalties upon conviction in our state. Andrew Williams is an experienced and passionate criminal lawyer who will fight to protect your interests.
Have you recently been charged with a drug offence? If so, contact the Andrew Williams Criminal Law Offices today. You can reach us on (08) 9278 2575.
