Drug possession charges in Queensland

Possession means control, and it means knowledge

The prosecution has to prove two things beyond reasonable doubt: that you had the drug in your possession, and that you knew of its presence and its nature.

Possession is not ownership. It is custody or control. It can be actual, where the drug is on you. It can be constructive, where the drug is somewhere you have the ability to control it. And it can be joint, where more than one person has that control. A drug in a glovebox of a car you are driving, in a drawer in a room you rent, or in a bag you are carrying for someone else can all be possession.

The knowledge element is where most contested possession charges are actually fought. A passenger in a car, a housemate in a share house, and a partner who has never opened the other person bag are all in genuinely arguable positions until the prosecution can put the drug in their hands or their heads.

The deeming provision that does the heavy lifting

Section 129(1)(c) of the Drugs Misuse Act reverses part of that burden. Where a dangerous drug is found in or on a place, proof that you were the occupier or were concerned in the management or control of that place is conclusive evidence that the drug was in your possession, unless you show you neither knew nor had reason to suspect the drug was there.

That is a reverse onus, and you discharge it on the balance of probabilities rather than beyond reasonable doubt. It applies to places, which includes vehicles.

In practice this means:

• Share houses. If you are the lease holder and drugs are found in a common area, the deeming provision is against you. Evidence about who occupied which room, who had keys, who paid what and who the drugs belonged to matters enormously.
• Cars. The registered owner and the driver are both exposed. Where several people were in the car, the question of who was concerned in its control is live.
• What actually rebuts it. Not a denial. Records of who else had access, messages showing the drugs belonged to someone else, evidence you were not there, forensic material connecting another person, and where relevant, evidence about the concealment being inconsistent with your knowledge.

Police drug diversion, in detail

Section 378A of the Police Powers and Responsibilities Act 2000 (Qld) allows police to discontinue an arrest for a minor drugs offence and divert you instead. Since 3 May 2024 the scheme covers all dangerous drugs, not just cannabis, and also covers possession of a utensil and small quantities of schedule 4 and schedule 8 medicines.

There are three tiers, and they are a one way progression across your lifetime:

1. Drug diversion warning. Issued on the spot. No charge, no court, no further obligation.
2. Initial drug diversion assessment program. A mandatory session with an approved health provider, which you must complete.
3. Subsequent drug diversion assessment program. The third and final opportunity.

Eligibility

• The quantity must not exceed the quantity prescribed in the Police Powers and Responsibilities Regulation.
• The officer must reasonably believe the drug was for your personal use.
• You must not have committed a related indictable offence at the same time, which is the criterion that most often disqualifies people.
• You must not have previously been sentenced to imprisonment for supplying, trafficking or producing a dangerous drug.

If you accept a diversion assessment program and do not complete it within the required period, that is itself an offence under section 791 of the Police Powers and Responsibilities Act 2000 (Qld). Complete it, and keep the certificate.

If police did not offer diversion and you appear to have been eligible, raise it before your first mention rather than after a plea. Police prosecutions can and do discontinue matters where diversion was clearly available and simply overlooked.

Utensils, and the charges that come with possession

Possession of a dangerous drug is rarely charged alone.

• Section 10(2), possessing a utensil. A pipe, bong, grinder or anything else used or intended for administering, consuming or smoking a drug. Maximum 2 years, dealt with summarily, and included in the diversion scheme.
• Section 10(1), possessing a thing for use in a drug crime. A far more serious charge, maximum 15 years. Scales, clip seal bags in quantity, tick sheets and press moulds are charged here, and the charge is often the prosecution signal that supply is being considered.
• Section 10A, possessing property suspected of being connected with a drug offence. Maximum 2 years, and it requires you to give a satisfactory account of how you lawfully came by the property, on the balance of probabilities. Cash found alongside drugs is usually charged this way.

The presence of a section 10(1) charge or a large amount of cash changes the complexion of a possession matter considerably, because it opens the door to a supply allegation. Read our drug supply page if that applies to you.

What a possession sentence actually looks like

The maximums in section 9 bear almost no relationship to what happens in a Magistrates Court on a first charge.

A first possession of a small quantity for personal use, with an early plea and no relevant history, ordinarily resolves at a fine or a good behaviour bond. The real contest is whether a conviction is recorded under section 12 of the Penalties and Sentences Act 1992 (Qld). Fines are expressed in penalty units, which are indexed on 1 July annually, so ask what the current value is rather than relying on a figure you read last year.

What moves a possession sentence upwards is quantity, a history of like offending, and any indication the drug was not purely for personal use. What moves it downwards is genuine evidence of rehabilitation before the sentence date. Hair follicle testing, an engagement letter from a counsellor and a completed program are worth far more than an assurance from the bar table.

Where drug dependence sits behind repeated offending, a drug and alcohol treatment order under Part 8A of the Penalties and Sentences Act 1992 (Qld) may be available in the right case through the Queensland Drug and Alcohol Court, which requires a severe substance use disorder and is not available everywhere.