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ECSTASY OFFENCES, NSW

Ecstasy is the street name given to the synthetic drug MDMA (3,4-methylenedioxy-methamphetamine). Ecstasy combines the stimulant properties of amphetamines with mild properties of hallucinogenic drugs like mescaline.

Ecstasy typically produces a sense of euphoria and empathy in addition to heightened awareness. For that reason, it is commonly regarded as a “party drug.”

Ecstasy is classified as a prohibited drug by the Drug Misuse and Trafficking Act 1985 (NSW). That makes it illegal to possess, use, sell, make, transport, or import the drug. The maximum penalties associated with those acts depend upon the offence and the quantity of Ecstasy involved.

Most Ecstasy is manufactured in Europe. Manufacturing Ecstasy in Australia is illegal but rare. Possession, supply, and importation offences, however, are common.

Ecstasy offences can result in serious consequences. You should always obtain legal advice and representation if you are charged with an offence involving Ecstasy.

POSSESSION ECSTASY

Possession of Ecstasy is prohibited by section 10 of the Drug Misuse and Trafficking Act. The offence is typically charged under section 10 when the possession is for personal use.

Possession of Ecstasy 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 Ecstasy solely for your own use, however, you are entitled to be convicted of possession rather than supply.

You possess Ecstasy 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 Ecstasy if they each have the right to control its use. That means that if you and a friend buy Ecstasy together and intend to share it, you can both be found guilty of possession.

If you leave Ecstasy in your home, your car, or your locker, you can be convicted of possessing the Ecstasy because you have control of it. If the Ecstasy 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 Ecstasy belonged to you rather than some other occupant of the home.

If someone else leaves Ecstasy 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 Ecstasy is not a crime if you have no right to use the Ecstasy 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.

Penalties

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 Ecstasy 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.

SELF-ADMINISTRATION -USING ECSTACY

Using Ecstasy is prohibited by section 12 of the Drug Misuse and Trafficking Act. That section prohibits administering a prohibited drug to yourself. Ecstasy is typically “administered” by swallowing it.

An unsuccessful attempt to use Ecstasy is also a violation of section 12.

Self-administration is typically charged when the police have a witness who saw the accused take Ecstasy. The police generally need to obtain a blood test to verify that the drug was Ecstasy 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 Ecstasy in the accused’s possession.

Penalties

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 Ecstasy 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 Ecstasy to another person is prohibited by section 13 of the Drug Misuse and Trafficking Act. Administering means introducing Ecstasy into another person’s body. Since Ecstasy is normally swallowed, placing a pill containing Ecstasy into another person’s mouth would be an example of administration to others.

Most administration to others offences involve injecting a drug into another person’s body by use of a syringe. Since that is not a common means of using Ecstasy, administration to others is not a typical charge involving Ecstasy. If you give Ecstasy to another person for that person’s use, you are more likely to be charged with supply than administration to others.

Penalties -Self-administration is a summary offence

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 Ecstasy 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.

SUPPLY

Section 25 of the Drug Misuse and Trafficking Act makes it an offence to supply Ecstasy. Supply means doing any of the following:

  • Sell
  • Distribute
  • 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 Ecstasy in his or her possession, or in cases of “deemed supply.”

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.

Since Ecstasy is not a prescription drug, an accused who possessed a trafficable quantity of Ecstasy will need to establish that Ecstasy was possessed for personal use in order to avoid a supply conviction. A trafficable quantity of Ecstasy is 0.75 grams.

Supply on ongoing basis

Section 25A of the Drug Misuse and Trafficking Act makes it an offence to supply Ecstasy 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.

Penalties

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 Ecstasy is defined as less than 0.25 grams.

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 Ecstasy is defined as less than 1.25 grams.

If the case proceeds as a summary offence, the maximum penalty for supplying Ecstasy is imprisonment for 2 years.

If the case proceeds by indictment, the maximum penalty for supplying Ecstasy 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 Ecstasy on an ongoing basis is imprisonment for 20 years.

A fine can be imposed in lieu of or in addition to imprisonment.

TRAFFICKING PENALTIES

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 Ecstasy is 0.125 kg. The maximum penalty for supply of a commercial quantity is imprisonment for 20 years.

A large commercial quantity of Ecstasy is 0.5 kg. The maximum penalty for supply of a large commercial quantity is imprisonment for life.

IMPORTATION

Importing Ecstasy into Australia is a federal crime. Ecstasy 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 Ecstasy involved in the offence. The maximum term of imprisonment for importing less than a marketable quantity is 10 years.

A marketable quantity of Ecstasy is 2 grams. The maximum term of imprisonment for importing a marketable quantity of Ecstasy is 25 years.

A commercial quantity of Ecstasy is 250 grams. The maximum term of imprisonment for importing a commercial quantity of Ecstasy is life.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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