Producing Dangerous Drugs

Published: 24 December 2020
Published: 24 December 2020
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Producing Dangerous Drugs – Queensland

Drug production, or ‘producing dangerous drugs’ as the offence is described in Queensland, is a serious criminal offence, punishable by imprisonment. The definition of the word ‘produce’ in the Drugs Misuse Act (Qld) is extremely broad and allows individuals to be charged with producing a dangerous drug even though there may never be any dangerous drugs actually produced.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of producing dangerous drugs.

If you face a charge of producing a dangerous drug, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Queensland Law

Section 8 Drugs Misuse Act (Qld)

Section 8(1) of the Drugs Misuse Act (Qld) makes producing dangerous drugs an offence in Queensland. The law states:

8 Producing dangerous drugs

(1) A person who unlawfully produces a dangerous drug is guilty of a crime.

Circumstances of Aggravation

In Queensland, criminal charges can carry ‘circumstances of aggravation’ that, if proved, lead to an increase in the possible maximum penalty or the imposition of a minimum penalty.

There are a number of circumstances of aggravation that apply to producing a dangerous drug, including the serious organised crime circumstance of aggravation under section 161Q of the Penalties and Sentences Act. If that circumstance of aggravation is proved against a person charged with drug production in Queensland, it mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who produce drugs in association with being a participant of a criminal organisation.

Other circumstances of aggravation for the offence of producing a dangerous drug are based on the quantities of the drug produced.

Definition: Unlawfully

The meaning of the word ‘unlawfully’ is defined in section 4 of the Drugs Misuse Act (Qld):

unlawfully means without authorisation, justification or excuse by law.

Definition: Produce

Section 4 of the Drugs Misuse Act (Qld) contains a definition of the word ‘produce’ for the purposes of section 8:

(a) prepare, manufacture, cultivate, package or produce;

(b) offering to do any act specified in paragraph (a);

(c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in paragraph (a).

This definition of the word ‘produce’ is extremely broad and allows individuals to be charged with producing a dangerous drug even though there may never be any dangerous drugs actually produced.

Definition: Dangerous Drug

Section 4 of the Drugs Misuse Act (Qld) defines ‘dangerous drug’ to mean:

dangerous drug means—

(a) a thing stated in the Drugs Misuse Regulation 1987, schedule 1 or 2; or

(b) any part of a plant that is a thing stated in the Drugs Misuse Regulation 1987, schedule 1 or 2; or

(c) a derivative or stereo-isomer of a thing mentioned in paragraph (a) or (b); or

(d) a salt of a thing mentioned in any of paragraphs (a) to (c); or

(e) an analogue of a thing mentioned in any of paragraphs (a) to (d); or

(f) a thing that has, or is intended to have, a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e); or

Note— See also section 4BA for when a thing is intended to have a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e).

(g) a thing mentioned in any of paragraphs (a) to (f) that is contained in—

(i) a natural substance; or

(ii) a preparation, solution or admixture.

Drug Production: Elements

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

For a drug production case in Queensland, the prosecution sets out to prove that (1) the person charged (2) unlawfully (4) produced (5) a dangerous drug. It is also necessary to prove any circumstances of aggravation that may be alleged. Whether one or more of these elements is a real issue in a trial will depend on the circumstances of the case. For instance, a prosecution case based only on a suspected drug lab may involve no question of an unlawful production, but it may be disputed that the person charged was actually involved in any way. In other cases, there may be no dispute that the person charged was in possession of certain items, however the person charged disputes that the items were associated with any drug production.

One matter the prosecution does not need to prove is the particular dangerous drug in respect of which the offence is alleged to have been committed. Section 129(1)(b) of the Drugs Misuse Act (Qld) allows a person to be convicted as charged provided there is sufficient proof that “the thing to which the charge relates was at the material time a dangerous drug”. This allows the police and prosecutors to bring drug production cases on circumstantial evidence alone without the need to specify that the production concerned ‘heroin’, ‘methylamphetamine’, ‘cannabis’, or some other dangerous drug.

In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty of the same offence. For instance, a person may be found guilty if they aided or encouraged another person in an offence of producing dangerous drugs.

In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.

Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as producing a dangerous drug, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.

For drug production charges, the prosecution must not only prove the elements of the offence beyond reasonable doubt, it must also disprove all defences that may apply beyond reasonable doubt. However, as is outlined below, the Drugs Misuse Act (Qld) does create some modifications as to the onus of proof for some defences, which can impact how a particular defence may be established.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for ‘producing a dangerous drug’

The law requires the prosecution to prove that the charge was committed ‘unlawfully’. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty.

Some defences available under the Criminal Code (Qld) do not apply to drug production, and others, such as compulsion or extraordinary emergency, may only arise in exceptional circumstances. A common issue in cases involving drug charges is whether the person charged had an honest and reasonable but mistaken fact about the thing found in their possession, or, in the case of producing dangerous drugs, what they understood they were producing. Such issues possibly give rise to a defence of ‘mistake of fact’ under section 24 of the Criminal Code (noting that defence is qualified by s. 129(1)(d) of the Drugs Misuse Act). The Queensland Court of Appeal in R v Duong [2015] QCA 170 determined that for a mistake of fact defence to apply, it cannot be a belief that the person charged was simply dealing with a different, potentially less serious form of, dangerous drug. That is, it is only if a person establishes a belief that they were not dealing with any dangerous drug that they may be acquitted due to a defence of ‘mistake of fact’.

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of drug production should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Penalties & Sentences

Maximum Penalty

The maximum penalty for producing dangerous drugs in Queensland is between 15 years’ and 25 years’ imprisonment, depending on the nature of the drug produced and whether any circumstances of aggravation apply. In certain circumstances, a lesser maximum penalty applies if the judge is satisfied that the person convicted was a “drug dependent person”. The term ‘drug dependent person’ is defined in section 4 of the Drugs Misuse Act (Qld) as meaning a person:

drug dependent person means a person—

(a) who, as a result of repeated administration to the person of dangerous drugs—

(i) demonstrates impaired control; or

(ii) exhibits drug-seeking behaviour that suggests impaired control;

over the person’s continued use of dangerous drugs; and

(b) who, when the administration to the person of dangerous drugs ceases, suffers or is likely to suffer mental or physical distress or disorder.

Minimum Penalty

While many offences under Queensland law do not carry mandatory minimum sentences, drug production does when a person is convicted of the following circumstance of aggravation:

  1. When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years’ imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, on top of whatever other penalty is set by the court.

Sentencing in Queensland

For a charge of producing a dangerous drug, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations. For a drug offence, the law states that the court must have regard to the following considerations:

(a) principles that—

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; and

(b) the maximum and any minimum penalty prescribed for the offence; and

(c) the nature of the offence and how serious the offence was, including—

(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under section 179K; and

(ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence; and

(d) the extent to which the offender is to blame for the offence; and

(e) any damage, injury or loss caused by the offender; and

(f) the offender’s character, age and intellectual capacity; and

(g) the presence of any aggravating or mitigating factor concerning the offender; and (ga) without limiting paragraph (g), whether the offender was a participant in a criminal organisation—

(i) at the time the offence was committed; or

(ii) at any time during the course of the commission of the offence; and

(h) the prevalence of the offence; and

(i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

(j) time spent in custody by the offender for the offence before being sentenced; and

(k) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and

(l) sentences already imposed on the offender that have not been served; and

(m) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender; and

(n) if the offender is the subject of a community based order—the offender’s compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer; and

(o) if the offender is on bail and is required under the offender’s undertaking to attend a rehabilitation, treatment or other intervention program or course—the offender’s successful completion of the program or course; and

(p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example—

(i) the offender’s relationship to the offender’s community; or

(ii) any cultural considerations; or

(iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and

(q) anything else prescribed by this Act to which the court must have regard; and

(r) any other relevant circumstance.

Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

The possible outcomes for drug production charges charges are wide, ranging from recognisance orders and fines through to actual imprisonment. It is possible for the the offence to be deemed a ‘serious violent offence’, which mandates an offender serve 80% of the imprisonment before they are eligible for release on parole. The significant issues that affect the sentencing outcome relates to the nature of the drug, the quantity or quantities produced, as well as the motivations driving the production. In that regard, it was said in a joint judgment of two Judges in the Court of Appeal in R v Applewaite & Jones [1996] QCA 533 in relation to cannabis production:

…the main factors which influence the level of sentence seem to be the following:

1. The size of the plantation, the sophistication of the project and its potential for profit.

2. Whether the production is for commercial gain or own use.

3. The planning involved, the professionalism, and the degree of criminality or wickedness which is discernible.

4. Whether the offender is a principal, or (scaling downwards) a profit-sharer, paid worker, or mere peripheral helper.

5. The period over which the offender has been engaged in the criminal enterprise.

6. Whether the offender has prior convictions, especially of a similar nature. Obviously a prior conviction for production or supply is far more relevant than one of possession.

7. Special factors common to most sentencing procedures, such as assistance to the police, early plea, young offender etc.

Significant Cases

The charge of producing dangerous drugs has involved a number of significant legal decisions over time, including in the Queensland Court of Appeal. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with drug production.

Queensland Court of Appeal

In R v Barrow [1999] QCA 56, the Queensland Court of Appeal considered an appeal that raised a number of issues. The issue of items that corroborate a charge of producing dangerous drugs was dealt with as part of the appeal. In that regard, the following quote from another case was cited with approval:

… potential corroboration is to be found not in the items considered separately, but in the combined weight of the circumstantial evidence …

The case of R v Barrow [1999] QCA 56 also shows the difficulties with raising certain defences for charges of this nature. In that case, it was contended on appeal that the the trial judge ought to have raised the defence of duress with the jury, as the appellant had called evidence that suggested the appellant had been subjected to a threat against him and his family at some indefinite future time and place. The argument was rejected as the alleged threat did not conform with the strict law of duress under section 31(1)(d) of the Criminal Code (Qld).

In R v Boyd [2001] QCA 421, the Queensland Court of Appeal heard an appeal as to whether a circumstance of aggravation (relating to the quantity of the dangerous drug) could only be established where there was evidence that the actual quantity of the drug produced exceeded the prescribed amount. In that case, while the evidence indicated that if the production process was successful that an amount above the schedule amount for the circumstance of aggravation could be produced, there was no evidence as to what had in fact been produced. It was concluded that while the conviction could still stand for unlawfully producing a dangerous drug, the circumstance of aggravation relating to the quantity needed to be quashed.

The following drug offences are possible charges that may be substituted for, or charged in addition to, a charge of producing a dangerous drug:

Producing Dangerous Drugs - Criminal Law Expertise