Supplying Dangerous Drugs

Published: 23 December 2020
Published: 23 December 2020
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Supplying Dangerous Drugs – Queensland

Drug supply, or ‘supplying a dangerous drug’ as the offence is described in Queensland, is a serious criminal offence, punishable by imprisonment. The definition of ‘supply’ in the Drugs Misuse Act (Qld) is extremely broad and allows individuals to be charged with supplying a dangerous drug even though there may never be a transaction or actual exchange of drugs.

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 supplying dangerous drugs.

If you face a charge of supplying 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 6 Drugs Misuse Act (Qld)

Section 6(1) of the Drugs Misuse Act (Qld) makes supplying dangerous drugs an offence in Queensland. The law states:

6 Supplying dangerous drugs

(1) A person who unlawfully supplies a dangerous drug to another, whether or not such other person is in Queensland, 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 supplying 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 supply in Queensland, it mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit a drug supply offence in association with being a participant of a criminal organisation.

Other circumstances of aggravation for the offence of supplying a dangerous drug are:

  • the person to whom the thing is supplied is a minor under 16 years; or
  • the person to whom the thing is supplied is a minor who is 16 years or more; or
  • the person to whom the thing is supplied is an intellectually impaired person; or
  • the person to whom the thing is supplied is within an educational institution; or
  • the person to whom the thing is supplied is within a correctional facility; or
  • the person to whom the thing is supplied does not know he or she is being supplied with the thing.

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: Supply

Section 4 of the Drugs Misuse Act (Qld) contains a definition of the word ‘supply’ for the purposes of section 6:

(i) give, distribute, sell, administer, transport or supply; or

(ii) offering to do any act specified in subparagraph (i); or

(iii) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in subparagraph (i).

This definition of supply is extremely broad and allows individuals to be charged with supplying a dangerous drug even though there may never be a transaction or actual exchange of drugs. For example, sending a text message to facilitate the supply of a dangerous drug may fall within the scope of doing an act preparatory to, in furtherance of, or for the purpose of, supplying a dangerous drug.

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 Supply: 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 supply case in Queensland, the prosecution sets out to prove that (1) the person charged (2) unlawfully (4) supplied a (5) 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 intercepted communications may involve no question of identity, but it may be disputed that any conversations concerned the supply of drugs. In other cases, there may be no dispute that there is evidence of drug supply, however the person charged disputes that they were involved.

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 supply cases on circumstantial evidence alone without the need to specify that the supply 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 supplying 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 supplying 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 supply 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 ‘supplying 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 supply, 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 supplying dangerous drugs, what they supplied. 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 supply should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Penalties & Sentences

Maximum Penalty

The maximum penalty for supplying dangerous drugs in Queensland is between 15 years’ and life imprisonment, depending on the type of drug and whether any circumstances of aggravation apply.

Minimum Penalty

While many offences under Queensland law do not carry mandatory minimum sentences, drug supply 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 supplying 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 supply 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 supplied, as well as the motivations driving the supply.

The sentencing outcomes are serious though, even if the person supplying the drug has an addiction themselves. In R v Anable [2005] QCA 208, the offender was 38 years old, had no prior criminal history and was addicted to drugs, sold $300 worth of methylamphetamine to an undercover police officer and agreed to supply more of the drug at a later time. The Court of Appeal did not interfere with a sentence of nine months imprisonment. It was said by Justice White, in agreeing with the reasons of the Chief Justice:

With no relevant previous convictions another Judge might have wholly suspended the sentence or, indeed, crafted some other sentence, but I cannot conclude that the sentence imposed by his Honour below constituted appellable error …

The case R v Richardson [1997] QCA 161 shows it is possible for the court to exercise its discretion to not record a conviction for supplying dangerous drugs.

Significant Cases

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

High Court of Australia

In Maroney v The Queen [2003] HCA 63, the High Court of Australia was required to consider whether the offence of supplying a dangerous drug could be charged against the person to whom the drug was supplied. At trial, the prosecution case was that the person to whom the drug was supplied within a correctional institution was Maroney. The prosecution case therefore characterised him as both the person who unlawfully supplied the dangerous drug and as the person to whom it was supplied. The contention that he could still be charged as a supplier if he was shown to have counselled or procured another person to supply him the drugs (as per section 7(1)(d) of the Criminal Code 1899 (Qld). Before the High Court, it was argued that as section 6 of the Drugs Misuse Act required the drug to be supplied to “another”, it was wrong for a conviction to stand where the case related to supplying the drug to himself. The majority (4-1) of the High Court found that the conviction should stand, as the counselling or procuring of another to supply the drugs meant that another person was involved in the supply of drugs to Maroney.

Queensland Court of Appeal

In R v Kaddour [2018] QCA 37, the Queensland Court of Appeal heard an appeal which related to the interpretation of section 129(1)(a) and (b) of the Drugs Misuse Act. While drug supply offences are often proved with the aid of a certificate of a drug analyst, which sets out the results of the analysis of the substance in question, in this case the fact of the substance being a ‘dangerous drug’ was proved by circumstantial evidence. The decision confirms that so long as the evidence is sufficient to establish that a dangerous drug was supplied, there is no necessity for the prosecution to prove the specific type of drug that was supplied (i.e. cannabis, methylamphetamine, etc).

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

Supplying Dangerous Drugs - Criminal Law Expertise