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Drug Possession

The possession of any “drug of dependence” in the ACT that has not been prescribed by a doctor violates section 169 of the Drugs of Dependence Act 1989. Drugs of dependence are defined by the Drugs of Dependence Regulation as controlled drugs listed in Schedule 1 of the Criminal Code Regulations.

That definition includes nearly all drugs that are prohibited or available only by prescription, including cocaine, Ecstasy, and heroin. A different section of the law addresses the possession of small amounts of cannabis (marijuana).

The maximum penalty for possession of a drug of dependence is a 2 year sentence and/or a fine. Even if you are arrested for (and are guilty of) a possession offence, it may be possible to persuade the court not to record a conviction against you.

Participation in drug treatment may help you avoid a conviction in some instances. If you are charged with a possession offence, you should talk to a lawyer to find out whether alternatives to a conviction might be available in your case.

Possession versus Trafficking

The definition of trafficking in section 603 of the Criminal Code includes possession of a drug with the intent to sell it. In other words, if you possess a drug because you plan to sell it, the offence is trafficking. If you possess the same drug for your personal use, the offence is possession.

The police cannot always tell whether a drug is possessed with the intent to use it or to sell it. An accused who is arrested for trafficking may therefore be able to defend the charge by arguing that the drug was possessed for personal use.

That defence might not be successful if the drug quantity is larger than one person would probably be able to consume or if there is other evidence of trafficking, including the presence of scales and baggies near the drug or the testimony of witnesses who purchased the drug from the accused in the recent past.

Possession of a “trafficable amount” of a controlled drug creates a presumption that the drug was possessed with the intent to sell it. Examples of “trafficable amounts” include:

  • Cocaine, 6 G
  • Methamphetamine, 6 G
  • Heroin, 5 G
  • MDMA (Ecstasy), 10 G
  • LSD, 0.003 G

It may be possible to overcome that presumption by presenting evidence (including the accused’s own testimony) that the drug was possessed for personal use. For instance, a heavy user of cocaine might consume 6 grams of cannabis in less than a week.

That user might purchase more than 6 grams at a time to get a price break or to avoid the risk of making repeated trips to a drug dealer. If there is no other evidence that the accused intended to sell the cocaine, the accused might be found guilty of possession rather than trafficking despite the presumption that the cocaine was possessed for sale.

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