The offence of supplying a dangerous drug is found in section 6 of the Drugs Misuse Act 1986 (Qld). It is a complicated offence due to the broad definition of supply. Penalties can range from fines all the way up to lengthy periods of imprisonment depending on various factors explored on this page.
What do the prosecution have to prove?
For the charge to be made out, Police must prove the following ‘beyond a reasonable doubt’:
- that the defendant supplied;
- a dangerous drug;
- to another person; and
- the act of supplying was unlawful (in other words, not in a way prescribed by law such as a nurse administering morphine to a patient).
What does ‘supply’ mean?
The definition of supply is very broad and is contained in section 4 of the Drugs Misuse Act 1986 to include any of the following acts:
- Give, or offering to give;
- Distributing, or offering to distribute;
- Selling, or offering to sell;
- Administering, or offering to administer;
- Transporting, or offering to transport; or
- Supplying or offering to supply;
- To do any act in preparation to giving, distributing, selling, administering, transporting or supplying the dangerous drug.
As the definition of ‘supply’ is very broad, people often overlook what acts can constitute supplying. Some of the more unusual situations include supplying to yourself or offering to supply, despite not carrying out the actual supply. It should be noted that for this charge to be made out, prosecution do not need to prove that an actual supply of a dangerous drug occurred. It is sufficient to merely establish there was an offer to supply or that an act occurred in furtherance of supply.
We have explored the wide definition of what amounts to supplying dangerous drugs in more detail.
What is a dangerous drug?
The Drugs Misuse Regulation 1987 categorises dangerous drugs into different schedules. Often, terms such as a ‘schedule 1’ or ‘schedule 2’ drugs are referred to.
A ‘schedule 1’ drug includes amphetamine, cocaine, heroin, lysergide (LSD or lysergic acid), methylamphetamine (ice) and 3, 4- Methylenedioxymethamphetamine (MDMA or ecstasy).
A ‘schedule 2’ drug refers to over 100 less serous dangerous drugs and includes cannabis, codeine, methadone, morphine, opium, oxycodone and psilocybin (magic mushrooms).
A dangerous drug can also include substances that have chemical structures similar to that of a schedule 1 or 2 drug. It can also include things that have a substantially similar pharmacological effect to that of a schedule 1 of 2 drug or which is intended to have the same effect (for example synthetic drugs).
What are the usual penalties?
The penalties for supplying dangerous drugs vary according to the type of drug and whether there are any aggravating circumstances.
The maximum penalty for supplying a schedule 1 drug in Queensland is 20 years imprisonment and for supplying a schedule 2 drug, 15 years imprisonment.
The maximum penalty increases if a circumstance of aggravation exists. This includes the following:
| Circumstance of aggravation | Maximum Penalty |
| Supplying a schedule 1 drug to a minor under the age of 16 years | Life imprisonment |
| Supplying a schedule 1 drug to:
· A minor person over the age of 16 years · An intellectually impaired person · Within an educational facility · Within a correctional facility; · To someone who does not know they are being supplied a dangerous drug |
25 years imprisonment |
| Supplying a schedule 2 drug to a minor under the age of 16 years | 25 years imprisonment |
| Supplying a schedule 2 drug to:
· A minor person over the age of 16 years · An intellectually impaired person · Within an educational facility · Within a correctional facility; To someone who does not know they are being supplied a dangerous drug |
20 years imprisonment |
Sentences for supplying a dangerous drug, particularly if the drug is a schedule 1 drug, usually result in periods of imprisonment. Often defendants charged with this offence where prosecution allege that the supply was for commercial purposes receive more significant penalties including actual imprisonment.
In situations where the supply is a schedule 2 drug or where there is no circumstance of aggravation and the charge is dealt with in the Magistrates Court, defendants typically receive lesser penalties including a fine or a community-based order which includes community service or probation.
If you have been charged with supplying a dangerous drug, it is strongly recommended that you obtain legal advice.
What negotiations can be made?
One of the most common ways defendants are charged with supplying dangerous drugs is following a search or download of a mobile phone. Other ways, particularly for defendants charged with supplying within a correctional facility, is through telephone intercepts or recordings.
Often, there are many legal arguments that arise in a charge of supplying dangerous drugs. These include:
- Whether a police search was lawful and whether the evidence police seek to rely on to prove the charge can be excluded; or
- Whether the supply actually included a ‘dangerous drug’.
It is common to negotiate with prosecution at an early stage as often it could result in:
- Prosecution not proceeding with a circumstance of aggravation (which would ordinarily carry a higher penalty); or
- Prosecution amending the type of dangerous drug from a schedule 1 drug to an unknown or unspecified drug. If this occurs, it is sometimes possible to deal with the charge in the Magistrates Court where ordinarily the penalties are lower.
Due to the seriousness and complexity of the offence, any individual charged with supplying a dangerous drug should seek expert advice from a criminal lawyer as early as possible.
What Courts can the matters be heard in?
Generally, an offence of supplying a dangerous drug must proceed on indictment to the District Court of Queensland or the Supreme Court of Queensland. This includes supplying a schedule 1 drug (even without any circumstances of aggravation) or supplying a schedule 2 drug where a circumstance of aggravation exists.
However, if the charge is one of supplying a schedule 2 drug and no circumstance of aggravation exists, the charge may be heard in the Magistrates Court of Queensland. This is entirely at the discretion of prosecution. In exercising discretion, prosecution usually take into account whether there is an allegation of commercial interest.