Drug supply charges in Queensland

What counts as supply

Section 4 of the Drugs Misuse Act defines supply, and the definition is deliberately broad. It includes giving, distributing, selling, administering, transporting and supplying. It also includes offering to do any of those things, and doing or offering to do any act preparatory to, in furtherance of, or for the purpose of any of them.

The consequences of that width are worth stating plainly:

• No money is required. Giving drugs away is supply.
• Nothing has to be delivered. An offer is complete when it is made. Agreeing over text to bring pills to a party is a supply even if you never go.
• Preparatory acts count. Arranging a meeting, collecting money, or holding drugs for someone else pending a handover can each be a supply.
• Sharing is supply. Passing a joint, splitting a bag bought jointly, or handing a pill to a friend at a festival is a supply, and where the recipient is a child under 16 the maximum becomes life imprisonment.

The offence does not require the drug to exist. Offering to supply something you do not have and never intend to provide can still be an offence, because the offer itself is the conduct.

Aggravated supply

Section 6(2) sets out circumstances of aggravation, all of which require the supplier to be an adult. They apply where the person supplied to is:

• A minor under 16 years.
• A minor aged 16 or over.
• An intellectually impaired person.
• Within an educational institution.
• Within a correctional facility.
• A person who does not know they are being supplied with a dangerous drug.

The last category, supplying a person who does not know, is the one that catches spiking. It applies whether or not the drug caused harm.

How supply is proved, and where it is contested

Supply charges are proved from messages far more often than from observed transactions. A typical Queensland supply brief contains extracted text and application messages, records of cash transfers, photographs of drugs or cash, and the physical items seized: scales, clip seal bags, tick sheets and multiple phones.

Quantity is circumstantial evidence, not a legal test. There is no amount that converts possession into supply automatically. What the amount does is make an inference of commercial purpose available to the prosecution, and that inference is answerable with evidence of personal use levels, income, and the pattern of purchases.

The arguments that most often work:

1. The messages do not say what the prosecution says they say. Drug conversations are heavily coded and prosecution interpretations of code are opinions. In context, many exchanges are consistent with buying rather than selling.
2. Joint purchase, not supply. Two people pooling money to buy for their own use is not one supplying the other. This is a genuinely available argument and it turns on the financial evidence.
3. Attribution. Who was using the phone, the account or the handle at the relevant time.
4. The offer was never a real offer. Puffery, jokes and conversations with no capacity or intention behind them are answerable, though the law does not require capacity, so this argument runs on intention.
5. The number of counts. Prosecutions frequently charge each message as a separate supply. Reducing the number of counts is often more valuable than contesting any single one.

Which court, and what sentences look like

Section 13 of the Drugs Misuse Act allows a supply charge to be dealt with summarily in a Magistrates Court where the maximum penalty is 15 years, which covers schedule 2 supply. A magistrate cannot impose more than 3 years on a summary conviction. Schedule 1 supply and aggravated supply generally proceed on indictment in the District Court.

The sentencing range is very wide because the conduct is very wide. At one end, a single supply of a small amount of cannabis between adults with an early plea can attract a fine or probation, and no conviction recorded is achievable. At the other, repeated supply of methylamphetamine for profit attracts actual imprisonment and, at higher levels, a discretionary serious violent offence declaration.

The factors that move a supply sentence:

• Commercial or social. Whether there was profit, and how much. Supplying at cost within a friendship group sits a long way below selling for gain.
• The drug. Schedule 1 supply, and methylamphetamine and heroin in particular, are treated far more seriously than cannabis.
• The recipient. Age, vulnerability and whether the recipient knew.
• Whether it was to fund a personal dependence. Genuine dependence, supported by evidence and accompanied by treatment, is real mitigation.
• The number and spread of counts. A short period with two counts is not a business. A long period with many counts invites a trafficking charge instead. See drug trafficking.