Possession With Intent to Sell or Supply WA

Possession of a prohibited drug with intent to sell or supply is one of the most serious drug offences under Western Australian criminal law.

The following paragraphs explore the definition of drug possession with intent to sell or supply, the elements of the offence, possible penalties, and the importance of seeking expert legal representation if you are charged with this offence.

What Constitutes Drug Possession With Intent to Sell or Supply in WA?

Section 6(1)(a) of the Misuse of Drugs Act 1981 WA (the MDA) outlines the offence of possession of prohibited drugs with intent to sell or supply to others. Prohibited drugs include methamphetamine, cannabis, cocaine, heroin, MDMA and other illicit drugs listed under the Act.

An intent to “sell” a prohibited drug means that a person intends to supply the drug in exchange for money. An intent to “supply” is much broader and includes giving, delivering, posting or in any other way providing a prohibited drug to another, whether or not in exchange for money.

Intent to sell or supply is proven through two primary means:

1. The possession of drugs exceeding specified amounts automatically raises the rebuttable presumption of intent to sell or supply under the Act. For example, possession of 2 grams or more of methamphetamine, heroin, or cocaine will mean that you are legally presumed to have held an intent to sell or supply. For cannabis, the threshold is 100 grams, or 10 plants. It’s important to note that the legal presumption is rebuttable.
2. Evidence such as witness evidence of intent to sell or supply as well as circumstantial evidence such as scales, clip-seal bags, large sums of cash, "tick lists" (records of transactions), or text messages suggesting drug sales can all be used to prove intent.

Elements of the Offence: What Police Must Prove

To secure a conviction, the prosecution must prove the following elements beyond a reasonable doubt:

1. Possession: The accused had knowledge of the existence of the prohibited drug and the drug was within their dominion or control.
2. Prohibited drug: The substance possessed is a prohibited drug, meaning that it is a drug which is illegal to possess. Drugs such as methamphetamine, cannabis, cocaine, heroin, or MDMA are obvious examples.
3. Intent to sell or supply: The accused intended to sell or supply all or a portion of the prohibited drug to another.

Penalties for Possession With Intent to Sell or Supply

The maximum penalties for being found guilty of the offence of possessing with intent to sell or supply depend on the type and quantity of prohibited drugs possessed.

For methamphetamine, if the accused is in possession of a trafficable quantity (over 28 grams) the maximum penalty is life imprisonment. In circumstances where the drug weighs over 4 grams, the maximum penalty is a $100,000 fine and/or 25 years imprisonment. If the drug falls under 4 grams the matter can be dealt with summarily in the Magistrates Court where the maximum penalty is significantly less.

For cannabis, the maximum penalty is a fine up to $5000 and/or 4 years imprisonment if prosecuted in the Magistrates Court or a fine up to $20,000 and/or 10 years imprisonment if prosecuted in the District Court.

For all other prohibited drugs that weigh over 4 grams, including cocaine, heroin and MDMA, the maximum penalty is a fine of $100,000 and/or 25 years imprisonment.

Aggravating circumstances, such as an intention to sell to minors or involvement in organised crime, can further increase sentences. Conversely, mitigating factors, such as a lack of prior convictions or demonstrated rehabilitation efforts, may reduce penalties.

Which Court Will Hear Your Case?

The court that hears your case will depend on the seriousness of the offence and whether or not it can be heard as a simple offence in the Magistrates Court. The question of jurisdiction will largely depend on the quantity or weight of the particular drug under concern.

Generally, if a defendant is accused of possession of small quantities of prohibited drugs with intent to sell or supply, they are more likely to be prosecuted in the Magistrates Court. If this is the case, the maximum penalties which apply are lower.

In all other circumstances, matters will be heard in the District Court.

Potential Defences to Possession With Intent Charges

Several available defences may be raised against charges of possession with intent to sell or supply, including:

1. The drug in the accused’s possession was for personal use, and the accused can provide evidence to rebut the presumption of intent to sell or supply.
2. The accused did not have the requisite knowledge of the drug. For example, they were unaware that they were in possession of prohibited drugs because they were unknowingly handed a bag containing drugs.
3. The drug in the accused’s possession was not a prohibited drug.
4. A formal defence is established such as necessity or duress, which means that the accused should not be found legally responsible for their conduct.

An experienced lawyer can also challenge the prosecution's case by highlighting gaps in evidence, questioning the reliability of evidence, or demonstrating procedural errors.

The Legal Process: What to Expect

The legal process for drug sale or supply charges generally includes the following stages:

1. Investigation and charge

When police suspect involvement in a drug offence, they conduct investigations that may include gathering physical evidence, such as testing substances to confirm they are prohibited drugs, and interviewing suspects or witnesses to strengthen their case. If sufficient evidence is found, charges are laid, and the matter is referred to the court.

2. Plea

All criminal cases begin in the Magistrates Court of Western Australia, where charges are formally read, and the accused can enter a plea of guilty or not guilty. Often, an adjournment is granted to allow the accused to seek legal advice, which is crucial for understanding the charges and possible outcomes. If the accused pleads guilty to a simple offence, such as simple drug possession, the court may sentence them immediately or adjourn the matter for a pre-sentence report and sentencing hearing. For indictable drug offences, early guilty pleas are fast-tracked to the District or Supreme Court, where the accused can benefit from sentencing discounts of up to 25%.

3. Trial

If the accused pleads not guilty, summary charges proceed to trial in the Magistrates Court, while indictable charges undergo committal proceedings. During this phase, the prosecution must disclose all evidence to the defence, including witness statements, forensic reports, CCTV footage, and certificates of analysis. Negotiations between the defence and prosecution may lead to reduced charges or discontinuance of the charge if the evidence is insufficient or the public interest is not served by proceeding.

The jurisdiction in which a case is heard depends on the charge type: simple offences are dealt with exclusively in the Magistrates Court, indictable offences are tried in the District or Supreme Court, and either-way offences may be heard in either jurisdiction based on the case's seriousness. Trials for indictable offences involve a Trial Listing Hearing to estimate the trial's duration and address pre-trial issues before proceeding to a jury trial. A trial involves both sides presenting their case before a magistrate, judge alone or before a jury. This involves calling of witnesses and admitting of physical evidence. At the end of a trial, a verdict will be made determining if the accused is guilty or not guilty.

4. Sentencing

If found guilty, the court will determine an appropriate penalty in a sentencing hearing. Sentences for drug offences consider factors such as the drug type, quantity, and the accused's personal circumstances. Aggravating factors, such as large quantities of drugs or prior convictions, can lead to more severe penalties, while mitigating factors, like participation in diversion programs, may reduce the sentence.

Legal representation is crucial throughout this process to ensure fair treatment and explore opportunities for reduced charges or penalties.

Why Choose Andrew Williams as Your Defence Lawyer?

Andrew Williams is an experienced Criminal Lawyer and Barrister who can provide you with expert legal advice in relation to drug offences in Western Australia.

Andrew offers a range of criminal law services and traffic law services in Perth, Fremantle and throughout Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

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