Drug offences tried in Western Australia fall into two general jurisdicational categories: State and Federal Drug Offences. This page deals generally with State drug offences.
State Drug Offences - Possession of Drugs
Some of the most common type of drug charges prosecuted in Western Australia include:
1. Simple possession of a prohibited drug or plant;
2. Possession of a prohibited drug or plant with intent to sell or supply.
Either of these offences require that the prosecution prove, beyond reasonable doubt, that an accused person possessed a prohibited drug. To prove that a person has possession of a particular thing or item, the prosecution must prove that the person had both knowledge and physical control or custody over the item. Both of these aspects can be inferred from a variety of circumstances such as the location of the drug and the proximity of the accused person with that location (i.e - a bedroom occupied by the accused), evidence of drug dealing (for example, messages on phones indicating the prior sale of prohibited drugs) and forensic evidence such as fingerprints or DNA evidence on or near where drugs are found. It is also the case that a person can be charged as being in sole possession of a drug (they possessed the drug by themselves) or as a joint possessor of a drug with another person.
Intent to Sell or Supply - Methamphetamine, Cocaine, MDMA and Heroin
Methamphetamine, Cocaine and MDMA are some of the most commonly considered types of drugs in drug prosecutions.
The Misuse of Drugs Act 1981 sets out that where the weight of the drugs that a person is alleged to have possessed exceeds 2 grams, then there is a statutory presumption that the person, if they possessed the drugs, intended to either sell or supply those drugs. In such an instance, an accused person who accepts that they possessed the drugs, but disputes that they intended to sell or supply them, can rebut that allegation by proving, on the balance of probabilities, that they did not have that intention. This is a common issue at trial in Western Australia. For instance, Person A is charged with possessing 3.6 grams of methamphetamine with intent to sell or supply. Whilst he or she accepts that the drugs were possessed by them, they assert that they did not intend to sell or supply the drugs, that is, they assert that the drugs were for what is commonly referred to as "personal use". If they can satisfy the Court that there was no requisite intent, then they would be convicted of simple possession as an alternative to the charged offence.
It is sometimes the case that your criminal defence lawyer can speak with the Prosecution about the possibility of negotiating a charge of possession with intent to sell or supply down to a charge of simple possession without the need for a trial. Clearly, this is the most cost-effective way of resolving a matter, however, the success of such negotiations will often depend on the facts and evidence available in respect to a particular case.
Will I go to jail if I'm convicted of possession with intent to sell or supply?
This is one of the most commonly asked questions that I have experienced as a criminal defence lawyer and barrister. In Western Australia, the Court of Appeal has made it clear that, in an ordinary case, the only available sentencing option for a person convicted of possession with intent to sell or supply is one of imprisonment. This is particularly the case in the situation where a Court is satisfied that the person intended to sell as opposed to supply the prohibited drugs in question. In order to satisfy a sentencing court that an immediate term of imprisonment should not be ordered, that is that the Court should impose a suspended sentence, it will be necessary to demonstrate that the situation is "exceptional". Important considerations will be those such as, but not limited to:
- The fact that the accused person was not trading in drugs, or if they were, that it was of a very low-level;
- The fact that the amount of drugs is low (although this is not in and of itself a conclusive factor);
- The personal circumstances of the accused person;
- Whether the person cooperated with Police; and
- Whether a plea of guilty was entered at the earliest reasonable opportunity.
Accordingly, if you are charged with drug offences, it is important that you obtain urgent legal advice about your legal position. The decision to do this can make a wealth of a difference in the quality of the ultimate outcome for an accused person, whether at trial or at sentencing.
If you are charged with a drug offence in Western Australia and require urgent advice about your criminal charges, please feel free to submit an enquiry form below and I will endeavour to respond to you on an urgent basis.