In Western Australia illegal drugs are called drugs of addiction or prohibited drugs. Drugs of addiction are a subclass of prohibited drugs. References to prohibited drugs include drugs of addiction. Illegal plants are called prohibited plants.

The definition of “drugs of addiction” and “prohibited drugs” extends to include substances which are chemical analogues of, or chemically related to, listed drugs of addiction or prohibited drugs.

This may mean that new synthetic type drugs that are chemically derived from or related to a drug of addiction or prohibited drug will also be illegal, even if it is not specifically listed in the schedules.

Knowledge of the particular drug

For offences involving prohibited drugs or plants in WA the police generally have to prove that you knew or should have known that the drugs or plants were prohibited drugs or plants.

They don’t need to prove you knew which particular drug or plant you had in your possession. This means, for example that you can be charged with trafficking in speed, even if you thought you only had a legal synthetic substance.

If you try to pass off a substance or plant as a prohibited drug or plant, for the purpose of supply, you can still face the same penalties as if it were a prohibited drug. This means, for example, that you can be charged with suppling cocaine, even if you are trying to rip someone off by suppling icing sugar.

Mixtures of drugs and trafficking

A mixture of substances which contains an amount of a drug of addiction or prohibited drug will be regarded as an illegal drug. This means that if you sell cocaine cut up with washing powder you can still be charged.

Rules for determining total quantities of different drugs or mixtures of drugs for the purpose of determining which offence you will be charged with, which Court your case will be heard in, and what penalty you face on conviction, are very complicated.

WA uses a mixed weight system of calculating threshold quantities for trafficking.

WA police and prosecutors take the total weight of the seized drug sample (e.g., pills, tablets, caps, points, joints, mixtures, or preparations) to be the total quantity of the drug of addiction or prohibited drug when charging you.

The purity of the drugs is not relevant when determining what quantity of drug you possess and therefore what charge you face in court (e.g., possession for personal use or trafficking).

This means that it doesn’t matter how pure your drugs or drug mixtures are. The prosecution only has to show that the weight of the pills, tablets, caps, points, joints, or other mixture is greater than the trafficable quantity for you to be charged with trafficking.

Does the harm of the drug matter?

No. The perceived harm potential of a drug is NOT relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic). A court might take your motives and aggravating circumstances (see ‘Aggravating circumstances’ section below) into account when sentencing you for an offence, but certain drugs of addiction or prohibited drugs should not be treated as more or less harmful than others.

For example, if you possess 5g of heroin, and your friend possesses 5g of cocaine in the same circumstances, you should both be subject to the same charge of trafficking and receive a similar penalty. You should not be punished more severely for possessing drugs like heroin or ice, which are considered to be ‘really harmful’, ‘more evil’ or ‘harder drugs’ than for ‘party drugs’ like cocaine or ecstasy.

You should not be punished more severely for some drugs than for others based only on a ‘scale’ of the perceived harm of different drugs.

General charges for being involved in a drug offence

Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:

• taking part in an offence if you are involved in the offence even if you don't make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);
• being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by security or a guard or being a look out for a drug deal);
• aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., you tell someone they can use your shed to grow cannabis in); or
• conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.

Generally police will not charge you with additional charges such as being an accessory to supply if you are a user and arrange to score off a dealer. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

It is an offence to possess a ‘drug of addiction’ or a ‘prohibited drug’ or 'prohibited plant,' unless a doctor has lawfully prescribed that drug.

Proving possession

There are three elements relevant to proving possession: knowledge, custody and control.

• Knowledge means that you must know that the substance is a drug and that it is in your custody;
• Custody usually means having the drugs in your physical possession (for example, in your pocket or wallet or under you pillow). However, custody can also extend to include such places as your house or car;
• Control means that you have the right to do something with the drugs (for example, keep or use them).

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, the Court will infer you knew what it was.

Knowledge can be based on personal observation or information from another person. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.

There will be circumstances where, if you don't admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.

Do not admit to possessing drugs without speaking to a lawyer!

Custody and joint possession

Generally if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned had custody or control of the drugs, unless people make admissions.

The police must prove more than the facts that you knew drugs were there and that you didn't report the drugs or object to them being there. Therefore if you share a house and police find drugs in non-private parts of the house (say, the kitchen, lounge room or bathroom), it can be difficult to establish who has the sole custody or control of the drugs.

However it is not impossible for police to prove that possession was jointly held.  Possession can be shared between people if there was agreement between them, (for example, say you and your flatmates have a stash that you all have access to). Shared, or joint possession is generally hard to prove if no one admits to owning the drugs.

Possession without physical custody

In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.

If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.

Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don't have the keys with you at that time, police may not be able to show that you had custody and control.

You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.

If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.

Control

Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.

However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.

Temporary possession

Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.

If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the  'Carey defence'.

Penalties

Possession of a drug (for your own personal use) is a simple offence, which means it is dealt with by the Magistrates Court.

Maximum penalty: $2,000 and/or imprisonment for 2 years.[1]

Possession with intent to sell or supply is a much more serious offence.

Maximum penalty: $100,000 and/or imprisonment for 25 years.[2]

If you are caught with larger amounts of drugs you will be deemed to be in possession of the drugs for the purpose of supplying them, which means you will automatically face much higher penalties, unless you can prove that the drugs were for your own use, which may be hard.[3]

See the supply section for penalties you may face if you are in possession of more than a small amount of prohibited drugs or plants.

Use or administration of a drug is a simple ('summary') offence, which means it is dealt with by the Magistrates Court. It is illegal to inject another person even if they have asked you to or given you consent.

Maximum penalty: $2,000 and/or imprisonment for 2 years.[1]

It is not illegal to self-administer a prohibited drug or drug of addiction if it has been lawfully prescribed by a medical practitioner and is taken in accordance with the instructions or directions. It is an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine, and methadone without following the doctor's or pharmacist's directions for use.

This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose.

                Maximum penalty: $5,000.[2]

It is also an offence to ask another person to administer a prohibited drug to you, whether by injection or oral dose or any other method.

                Maximum penalty: $5,000.[3]

It is an offence to be found in any place used for the purpose of smoking a prohibited drug or prohibited plant other than cannabis (e.g. opium den).

                Maximum penalty: $3,000 and/or imprisonment for 3 years.[4]

Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Remember that any statements you make to police form part of the evidence that can be used against you. No conversation with police is ‘off the record’. For more information on your legal rights see the section on general legal information.

If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don't admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.

If you administer a prohibited drug to another person who subsequently dies from an overdose ('OD') you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Police will not normally attend an overdose unless:

• they are requested to do so by ambulance paramedics or medical personnel (because ambulance officers cannot control people present at the scene or due to a threat of violence);
• a death has occurred or there are suspicious circumstances (like attempted murder); or
• they were the first on the scene or they were called by another person or bystander.

Police guidelines direct police who do attend an overdose to use their discretion not to charge people at the scene, or the person who overdoses, with administration or other minor drug offences such as possession.

It is an offence in WA to obtain or attempt to obtain prescription drugs by lying or making false representations, such as forging a prescription.

                Maximum penalty: $3,000 and/or imprisonment for 3 years.[1]

The charge of supply will also be made if you are alleged to have trafficked or manufactured a drug.

It does not matter that something is supplied on behalf of another or on whose behalf it is supplied.

Acts of supply can include:

• offering or agreeing to supply, even if no deal ever takes place;
• being knowingly concerned in supply, for example, introducing someone to a dealer;
• supplying a legal substance, which you claim, is a prohibited drug, for example, selling aspirin and passing it off as heroin;
• pooling money and splitting up purchased drugs between the group of buyers; or
• having drugs in your possession for the purpose of supply.

If you are caught with drugs in your possession, police are more likely to charge you with supply if they find things like scales, deal bags, and cash.

Having above a certain quantity of drugs in your possession is known as ‘deemed supply’. With deemed supply charges you are in effect guilty until proven innocent. The court will automatically believe that you were holding the drugs in order to sell them. It will be up to you to prove that the drugs are not in your possession for the purpose of supply (e.g. they were for your own use or you were simply going to return them to their owner).

Because sharing a deal or helping someone score is part of drug-using culture, many users act as suppliers from time to time. A charge of supply can even rest on an offer to score on another person’s behalf or sharing your gear with other people. It doesn’t matter whether or not there is any money involved. There are also a number of other charges that can be made in relation to supply, including participating in supply and conspiracy to supply.

Selling, supplying, offering to supply a drug of addiction, prohibited drug or prohibited plant:

                Maximum penalty: $100,000 and/or imprisonment for 25 years.[1]

Supply of cannabis leaf (not resin or other cannabis products) is treated less seriously:

                Maximum penalty: $20,000 and/or imprisonment for 10 years.[2]

Selling, supplying, offering to supply a drug of addiction, prohibited drug or prohibited plant in an amount that is less than the indictable amount can be dealt with summarily in the Magistrate’s Court:

                Maximum penalty: $5,000 and/or imprisonment for 4 years.[3]

Trafficking offences are prosecuted under charges of supply in WA. The same penalties apply as those listed above under supply.

In WA the law requires that the Court declare that you are a drug trafficker if you have been previously convicted of two or more serious drug offences (supply or manufacture of any amount, or cultivation or possession of a trafficable or commercial amount) in the previous 10 years.[1]

That means you will be declared a drug trafficker on your third offence. The drug offences can be either inside WA or anywhere else in Australia or even overseas. You can also be declared a drug trafficker if you are convicted just once of a serious drug offence involving a large amount of prohibited drugs or plants.

The consequence of being declared a drug trafficker means that all your property (houses, land, cars, boats, money, shares and personal possessions) can be forfeited to the State government and permanently seized. Your property can be taken even if it was not connected to a drug offence and was lawfully obtained or acquired.

It is an offence to manufacture or prepare a drug of addiction or prohibited drug.

                Maximum penalty: $100,000 and/or imprisonment for 25 years.[1]

Manufacturing a drug of addiction or prohibited drug in an amount that is less than the indictable amount can be dealt with summarily in the Magistrate’s Court:

                Maximum penalty: $5,000 and/or imprisonment for 4 years.[2]

It is an offence to cultivate a prohibited plant with the intention of selling or supplying it to another person.

Cultivate has a wide meaning in WA and includes:

• growing;
• sowing or scattering the seed produced by a prohibited plant; or
• planting, nurturing, tending or harvesting the prohibited plant.

Other actions like watering the plant or fertilising it will likely be considered cultivation.

                Maximum penalty: $100,000 and/or imprisonment for 25 years.[1]

Cultivation of cannabis leaf (not resin or other cannabis products) with intention of sale or supply is treated less seriously.

                Maximum penalty: $20,000 and/or imprisonment for 10 years. [2]

As with possession of drugs, if you a caught cultivating a larger amount of prohibited plants, you can be charged with 'deemed supply'. This means you will face much higher penalties because the Court will automatically assume that you are growing to sell, and you will have to prove otherwise which may be hard to do.

Cultivation of a small amount of prohibited plant is less than the indictable amount can be dealt with summarily in the Magistrate’s Court is a less serious offence.

                Maximum penalty: $5,000 and/or imprisonment for 4 years.[3]

Cultivation of a small amount of prohibited plant for personal use is an offence:

                Maximum penalty: $2,000 and/or imprisonment for 2 years.[4]

Supply to children

Supplying drugs to children under 18 years old or involving children in the manufacture, cultivation or supply of drugs are much more serious crimes and have much higher penalties. The child will never be blamed or held responsible for being involved with prohibited drugs or plants.

In WA if you are found guilty of selling, supplying, or offering to sell or supply a prohibited drug or prohibited plant to a child, then the court must impose a sentence of imprisonment. This can be suspended (meaning you don't have to go to jail if you meet certain conditions), or imposed under conditions (like serving jail time on weekends only), or you can be sent straight to jail. This is the case even for a first offence.[1]

If you get caught dealing or giving or offerings prohibited drugs or plants to a child a second time, you will be sentenced to a mandatory minimum 6 months imprisonment in a correctional facility. This sentence cannot be suspended or served part time.

If you are caught using or in possession of a prohibited drug or plant or if you are caught cultivating a prohibited plant in circumstances that meant that the life, health or safety of a child under 16 years of age, was endangered you will be sentenced to a term of imprisonment – which may be imposed as suspended, conditional or actual imprisonment. The Court could interpret this broadly so that if you were exposing the child to dangerous chemicals or had illegal firearms or weapons in your grow house, that may be enough to prove that you are endangering the health of the child.[2]

If you get caught a second time you will go to jail for a mandatory minimum 6 months.[3]

If a child under 16 is injured, for example by a needle stick or swallowing some pills, because of your use, possession, manufacture or cultivation of a prohibited drug or plant, you will be imprisoned for a mandatory minimum 12 months.[4]