Page 931 - Week 03 - Thursday, 28 February 2013
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There are three categories for this offence. The most serious is for the possession of a large commercial quantity, which has a maximum penalty of 25 years imprisonment; the middle offence is for the possession of a commercial quantity, which has a maximum penalty of 15 years imprisonment; and the lowest is for the possession of any lesser quantity, which has a penalty of seven years of imprisonment.
Ordinarily, for drug offences, there are deeming provisions where certain quantities of drugs or controlled substances are found in the accused person’s possession. There is a sound and manifestly evident logic to this, and some level of connection with the facts that must be proved. If someone has a larger quantity, or the capacity to make a larger quantity, in the case of a precursor, whilst it is possible that they will take them all themselves, it is unlikely. It is therefore safer to presume that the person intends to sell at least some, and more justifiable that they be made to explain why they had such a quantity. Indeed, the explanatory statement says:
The inclusion of a legal presumption on an accused is consistent with the approach at section 604 (presumption if trafficable quantity possessed) and section 608 (presumption if trafficable quantity manufactured) of the Criminal Code 2002. The presumption at section 604 applies to the five offences at section 603 for trafficking in a controlled drug. If the accused prepared a trafficable quantity of a controlled drug for supply, transported a trafficable quantity of a controlled drug, guarded or concealed a trafficable quantity of a controlled drug or possessed a trafficable quantity of a controlled drug, then it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
So, contrary to the assertion in the explanatory statement that the clause in the bill is consistent with these provisions, it is in fact manifestly inconsistent with these provisions, because they will all require that a certain trafficable quantity be in the accused’s possession, because that gives rise to a logical connection with the sale.
In the case of a small amount, there is no logical link to say that the accused will necessarily be intending to sell it. To create such a presumption is a serious derogation from the right to the presumption of innocence, and to do so when there is no logical or necessary link to the conduct that the clause presumes is not only unreasonable and unnecessary, but simply unfair.
Drug trafficking is a serious offence and it should be treated as such. The penalties available are very serious, and appropriately so. What we should not be doing is presuming that someone is intending to commit a serious indictable offence when there may well be no evidence whatsoever that they intend to do so.
There is an accepted view in the community that selling drugs is significantly more serious than a person using drugs themselves, and the drug laws across the country, and indeed across the world, reflect this. In other circumstances we would not presume someone to commit another more serious offence simply because they have committed a less serious offence. For example, if a person is caught having committed a minor theft like shoplifting, we do not then impose on them a presumption that they
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