Page 920 - Week 03 - Thursday, 10 April 2014
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to law. The effect of the presumption of innocence in section 22(1) and the proportionality test require that any reverse presumption dealing with trafficable quantities of a controlled drug are rational. In practical terms, there must be a strong probability that the only reason a person found in possession of a trafficable quantity has that drug is for the purpose of trafficking it and there must be a very low risk that anyone in possession of a trafficable quantity would be in possession of the drug for the purpose of personal use.
Advice obtained by JACS indicates that the existing ACT trafficable quantities for controlled drugs do not adequately reflect usage patterns and the harms that flow from the five most-common controlled drugs. The current thresholds increase the risk that some traffickers will escape with a less serious sanction and that some people using for personal use only may receive a disproportionally harsh sanction.
Evidence about normal usage patterns place cocaine users at risk of exceeding the trafficable threshold quantities for an offence involving possession of an amount for personal use alone. In other words, in this instance, the bar is too low and ordinary users may unintentionally fall into the category of traffickers.
The evidence about heroin and methamphetamine use suggests that current trafficable thresholds are too high. A person could be in possession of a greater amount than is usual for personal use and may therefore be trafficking but the current threshold amounts mean that only simple possession offences can be charged. In other words, traffickers may be escaping appropriate penalties.
The amendment regulation amends the trafficable amounts for these four most-common controlled drugs. The amount for trafficking in heroin is now prescribed as five grams mixed, from the previous two grams pure. The amount for trafficking in methamphetamine is now prescribed as six grams mixed, from the previous two grams pure. The amount for trafficking in cocaine is now prescribed as six grams mixed, from the previous two grams pure. The amount for trafficking in MDMA is now prescribed as 10 grams mixed, from the previous 0.5 grams pure. The amount for trafficking in cannabis is unchanged, at 300 grams mixed.
The new amounts are an evidence-informed response to setting appropriate threshold quantities. The proposed new amounts will ensure that serious drug offences target drug traffickers rather than drug users, consistent with a harm minimisation approach to drug policy. In reforming the threshold quantities, the amendment regulation also adopts a broadly uniform multiplier.
The commercial quantity of a substance is now 500 times the trafficable quantity. The large commercial quantity is twice the commercial quantity. Cannabis will use its own multipliers to reflect the characteristics of trafficking in that drug. Researchers from the DPMP, together with the former New South Wales Director of Public Prosecutions, Mr Nicholas Cowdrey QC, have now considered the thresholds for all states and territories through a research project funded by a criminology research grant.
The key findings of this research have now been published on the Australian Institute of Criminology website. The publication entitled Australian threshold quantities for drug trafficking: Are they placing drug users at risk of unjustified sanction? provides
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