Common cocaine offences involve the possession
Cocaine is a controlled drug that has certain legitimate medical uses. Dentists typically regard it as a more effective anesthetic during dental surgery than other drugs. As a recreational drug, however, cocaine use and distribution is prohibited.
As it is sold on the street, cocaine comes in two forms. Cocaine hydrochloride is sold as a powder. Crack cocaine is a hardened form of the drug that can be smoked. The law of New South Wales draws no formal distinction between the two forms of the drug.
Common cocaine offences in NSW involve the possession, use, or supply of the drug. It is also against the law to manufacture cocaine, but that is typically done outside of Australia. Importing cocaine into NSW is usually punished under the laws of the Commonwealth.
The law of NSW provides harsh punishments for cocaine offences, regardless of the form in which the cocaine is delivered. If you have been arrested for, or charged with, a cocaine offence, you should seek legal representation immediately.
POSSESSION OF COCAINE
Possession of cocaine is prohibited by section 10 of the Drug Misuse and Trafficking Act. An offence is typically charged under section 10 when the possession is for personal use.
Possession of cocaine with the intent to sell it will usually be charged as supply. The possession of a drug quantity that a prosecutor thinks is too large for personal use may also be charged as supply. This is known as a “deemed supply” offence. If you can prove that you possessed the cocaine solely for your own use, however, you are entitled to be convicted of possession rather than supply.
You possess cocaine if you knowingly have it on your person or if you have the right to control it. Two or more people can possess the same cocaine if they each have the right to control its use. That means that if you and a friend buy cocaine together and intend to share it, you can both be found guilty of possession.
If you leave cocaine in your home, your car, or your locker, you can be convicted of possessing the cocaine because you have control of it. If the cocaine was in your home but in a place that was not under your exclusive control, it may be difficult to for the prosecutor to prove that the cocaine belonged to you rather than some other occupant of the home.
If someone else leaves cocaine in your car or places it in your pocket and you do not know the drug is there, you are not guilty of possession. The police might not believe you, however, when you tell them that you knew nothing about the drug.
Merely being in the presence of other people who are using cocaine is not a crime if you have no right to use the cocaine and never have it on your person. If you hold it, however, even for a moment as you pass it from one person to another, you possessed it. That is only a crime, however, if you know that you were holding a prohibited drug.
Possession is a summary offence. That means the charge is heard in a Local Court. You have the right to be proved guilty beyond a reasonable doubt in a trial, but you do not have the right to a jury trial.
In addition to a fine, the maximum penalty for possessing cocaine is imprisonment for 2 years. The maximum is not likely to be imposed for a first offence, but you could still be facing some loss of liberty, depending on the circumstances.
Using cocaine is prohibited by section 12 of the Drug Misuse and Trafficking Act. That section prohibits administering a prohibited drug to yourself. Powder cocaine is typically “administered” by inhaling it through the nose. Crack cocaine is usually administered by smoking it.
An unsuccessful attempt to use cocaine is also a violation of section 12.
Self-administration is typically charged when the police have a witness who saw the accused use cocaine. The police generally need to obtain a blood test to verify that the drug was cocaine and that the accused actually consumed it.
Since possession is easier to prove than use, possession will typically be charged unless the police are unable to recover any cocaine in the accused’s possession.
Self-administration is a summary offence. That means the charge is heard in a Local Court. You have the right to be proved guilty beyond a reasonable doubt in a trial, but you do not have the right to a jury trial.
In addition to a fine, the maximum penalty for self-administering cocaine is imprisonment for 2 years. The maximum is not likely to be imposed for a first offence, but you could still be facing some loss of liberty, depending on the circumstances.
ADMINISTRATION TO OTHERS
Administering cocaine to another person is prohibited by section 13 of the Drug Misuse and Trafficking Act. Administering means introducing cocaine into another person’s body. Since cocaine is normally inhaled, it is not a drug that is usually administered to others. It is possible, however, to inject cocaine, and injecting the drug into another person’s body would constitute the offence of administration to others.
Administration to others is a summary offence. That means the charge is heard in a Local Court. You have the right to be proved guilty beyond a reasonable doubt in a trial, but you do not have the right to a jury trial.
In addition to a fine, the maximum penalty for administering cocaine is imprisonment for 2 years. The maximum is not likely to be imposed for a first offence, but you could still be facing some loss of liberty, depending on the circumstances.
Section 25 of the Drug Misuse and Trafficking Act makes it an offence to supply cocaine. Supply means doing any of the following:
- Offer to sell or distribute
- Agree to sell or distribute
- Send, forward, or deliver
- Authorise, direct, cause, or permit someone else to sell or distribute
- Taking part in someone else’s supply of the drug
Supply also means “keeping or having in possession for sale.” The offence can be charged when the police have evidence that the accused intended to sell the cocaine in his or her possession, or in cases of “deemed supply.”
Section 29 of the Drug Misuse and Trafficking Act provides that possession of a trafficable quantity of a prohibited drug will be deemed to be in the accused’s possession for supply unless:
the accused proves the drug was possessed for some other reason, or
the accused has a valid prescription for the drug.
An accused who possessed a trafficable quantity of cocaine will need to establish that the cocaine was possessed for personal use in order to avoid a supply conviction. A trafficable quantity of cocaine is 3 grams.
The weight of cocaine includes the total weight of any substance or mixture containing cocaine. Even if the mixture being supplied is 10% cocaine and 90% baking soda, the weight of the entire mixture will count toward the 3 gram threshold.
Supply cocaine on ongoing basis
Section 25A of the Drug Misuse and Trafficking Act makes it an offence to supply cocaine on three or more separate occasions during any 30-day period. The drug can be supplied to one person or to different people, provided that three separate transactions occur.
Supply is an indictable offence. If the case involves a small quantity, however, the case will be dealt with in Local Court as a summary offence unless the prosecution elects to proceed by indictment. A “small quantity” of cocaine is defined as less than 1 gram.
If the case involves an indictable quantity, it will be dealt with in Local Court as a summary offence unless the prosecution or the accused elects to proceed by indictment. An “indictable quantity” of cocaine is defined as less than 5 grams.
If the case proceeds as a summary offence, the maximum penalty for supplying cocaine is imprisonment for 2 years.
If the case proceeds by indictment, the maximum penalty for supplying cocaine is imprisonment for 15 years. If the offence involves supply to a person under the age of 16, however, the maximum term of imprisonment increases to 25 years.
The maximum penalty for supply of cocaine on an ongoing basis is imprisonment for 20 years.
A fine can be imposed in lieu of or in addition to imprisonment.
The Drug Misuse and Trafficking Act (NSW) increases the penalty for supply when the offence involves commercial quantities or large commercial quantities of a prohibited drug. The enhanced penalties are often referred to as “trafficking” penalties.
A commercial quantity of cocaine is 250 grams. The maximum penalty for supply of a commercial quantity is imprisonment for 20 years.
A large commercial quantity of cocaine is 1 kilogram. The maximum penalty for supply of a large commercial quantity is imprisonment for life.
IMPORTATION OF COCAINE
Importing cocaine into Australia is a federal crime. Cocaine is defined as a “border controlled drug” and is therefore covered by Division 307 of the Commonwealth Criminal Code Act. Importing means bringing the drug into Australia from another country, or causing the drug to be brought into Australia.
The maximum penalty depends upon the quantify of cocaine involved in the offence. The maximum term of imprisonment for importing less than a marketable quantity is 10 years.
A marketable quantity of cocaine is 2 grams. The maximum term of imprisonment for importing a marketable quantity of cocaine is 25 years.
A commercial quantity of cocaine is 2 kilograms. The maximum term of imprisonment for importing a commercial quantity of cocaine is life.
Unlike the law of NSW, which bases punishment on the total weight of a product or mixture containing cocaine, Commonwealth law refers to the weight of the pure drug. The weight of any “cutting agent” is therefore disregarded when computing drug quantities.