South Australian Numbered Acts South Australian Numbered Acts14—Substitution of Part 5 Division 1 and heading to Part 5 Division 2
Part 5 Division 1 and heading to Part 5 Division 2—delete Division 1 and
the heading to Division 2 and substitute:
Division 1—Preliminary
31—Application of Part
(1) This Part does not
apply to—
(a) the
sale, manufacture, supply, administration or possession of a drug of
dependence, the sale or possession of equipment for use in connection with the
consumption or administration of such a drug or the preparation, for
consumption or administration, of such a drug by—
(i)
a medical practitioner, dentist, veterinary surgeon,
pharmacist or nurse acting in the ordinary course of his or her profession; or
(ii)
a member of any other prescribed profession acting in the
course of that profession; or
(iii)
a person acting in accordance with a licence issued by
the Minister under this Act; or
(b) the
possession of a drug of dependence, or of equipment for use in connection with
the consumption or administration of a drug of dependence, by—
(i)
a person—
(A) for whom the drug has been lawfully
prescribed; or
(B) to whom the drug has been lawfully
supplied for the purpose of consumption or administration by the person; or
(ii)
a person—
(A) being the owner of an animal for whom
the drug has been lawfully prescribed; or
(B) to whom the drug has been lawfully
supplied for the purpose of consumption by or administration to an animal
owned by the person; or
(iii)
a person acting of behalf of a person referred to in
subparagraph (i) or (ii); or
(c) the
administration or supply, or the giving of permission for the administration
or supply, of a drug of dependence to a person—
(i)
for whom the drug has been lawfully prescribed; or
(ii)
to whom the drug has been lawfully supplied for the
purpose of consumption or administration by the person; or
(d) the
consumption or administration of a drug of dependence by a person—
(i)
for whom the drug has been lawfully prescribed; or
(ii)
to whom the drug has been lawfully supplied for the
purpose of consumption or administration by the person.
(2) In proceedings for
an offence against this Part, subsection (1) is to be treated as
providing exceptions, and no proof will be required in relation to any
exception by the prosecution but the application of an exception will be a
matter for proof by the defendant.
Division 2—Commercial offences
Subdivision 1—Trafficking in controlled drugs
32—Trafficking
(1) A person who
traffics in a large commercial quantity of a controlled drug is guilty of an
offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2) A person who
traffics in a commercial quantity of a controlled drug is guilty of an
offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3) A person who
traffics in a controlled drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4) An offence against
subsection (3) involving cannabis, cannabis resin or cannabis oil (and
not involving any other controlled drug) must be prosecuted, and dealt with by
the Magistrates Court, as a summary offence but if the Court determines that a
person found guilty of such an offence should be sentenced to a term of
imprisonment exceeding 2 years, the Court must commit the person to the
District Court for sentence.
(5) If, in any
proceedings for an offence against subsection (1), (2) or (3) it is
proved that the defendant had possession of a trafficable quantity of a
controlled drug, it is presumed, in the absence of proof to the
contrary—
(a) in a
case where it is alleged that the defendant was taking part in the process of
sale of the drug, that the defendant—
(i)
was acting for the purpose of sale of the drug; and
(ii)
had the relevant belief concerning the sale of the drug
necessary to constitute the offence; or
(b) in
any other case—that the defendant had the relevant intention concerning
the sale of the drug necessary to constitute the offence.
Subdivision 2—Manufacture of controlled drugs
33—Manufacture of controlled drugs for sale
(1) A person who
manufactures a large commercial quantity of a controlled drug intending to
sell any of it or believing that another person intends to sell any of it is
guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2) A person who
manufactures a commercial quantity of a controlled drug intending to sell any
of it or believing that another person intends to sell any of it is guilty of
an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3) A person who
manufactures a controlled drug intending to sell any of it or believing that
another person intends to sell any of it is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4) If, in any
proceedings for an offence against subsection (1), (2) or (3) it is
proved that the defendant manufactured a trafficable quantity of a controlled
drug, it is presumed, in the absence of proof to the contrary that the
defendant had the relevant intention or belief concerning the sale of the drug
necessary to constitute the offence.
33A—Sale, manufacture etc of controlled precursor
(1) A person who sells
a large commercial quantity of a controlled precursor, believing that the
person to whom it is sold or another person intends to use any of it to
unlawfully manufacture a controlled drug is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(2) A person who sells
a commercial quantity of a controlled precursor, believing that the person to
whom it is sold or another person intends to use any of it to unlawfully
manufacture a controlled drug is guilty of an offence.
Maximum penalty: $75 000 or imprisonment for 15 years, or both.
(3) A person who sells
a controlled precursor, believing that the person to whom it is sold or
another person intends to use any of it to unlawfully manufacture a controlled
drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4) A person who
manufactures a controlled precursor—
(a)
intending to unlawfully manufacture a controlled drug; and
(b)
intending to sell any of the drug so manufactured or believing that another
person intends to sell any of it,
is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(5) A person who
manufactures a controlled precursor—
(a)
intending to sell any of the precursor to another person; and
(b)
believing that that person, or another person, intends to use the controlled
precursor to unlawfully manufacture a controlled drug,
is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
Subdivision 3—Cultivation and sale of controlled plants
33B—Cultivation of controlled plants for sale
(1) A person who
cultivates a large commercial quantity of a controlled plant intending to sell
any of them or their products or believing that another person intends to sell
any of them or their products is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2) A person who
cultivates a commercial quantity of a controlled plant intending to sell any
of them or their products or believing that another person intends to sell any
of them or their products is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3) A person who
cultivates a controlled plant intending to sell it or any of its products or
believing that another person intends to sell it or any of its products is
guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4) An offence against
subsection (3) involving a cannabis plant (and not involving any other
controlled plant) must be prosecuted, and dealt with by the Magistrates Court,
as a summary offence but if the Court determines that a person found guilty of
such an offence should be sentenced to a term of imprisonment exceeding 2
years, the Court must commit the person to the District Court for sentence.
(5) If, in any
proceedings for an offence against subsection (1), (2) or (3), it is
proved that the defendant cultivated a trafficable quantity of a controlled
plant, it is presumed, in the absence of proof to the contrary, that the
defendant had the relevant intention or belief concerning the sale of the
plants or their products necessary to constitute the offence.
33C—Sale of controlled plants
(1) A person
who—
(a)
sells a large commercial quantity of a controlled plant; or
(b) has
possession of a large commercial quantity of a controlled plant intending to
sell any of them or their products,
is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2) A person
who—
(a)
sells a commercial quantity of a controlled plant; or
(b) has
possession of a commercial quantity of a controlled plant intending to sell
any of them or their products,
is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3) A person
who—
(a)
sells a controlled plant; or
(b) has
possession of a controlled plant intending to sell it or its products,
is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4) An offence against
subsection (3) involving a cannabis plant (and not involving any other
controlled plant) must be prosecuted, and dealt with by the Magistrates Court,
as a summary offence but if the Court determines that a person found guilty of
such an offence should be sentenced to a term of imprisonment exceeding 2
years, the Court must commit the person to the District Court for sentence.
(5) If, in any
proceedings for an offence against subsection (1), (2) or (3) it is
proved that the defendant had possession of a trafficable quantity of a
controlled plant, it is presumed, in the absence of proof to the contrary,
that the defendant had the relevant intention concerning the sale of the
plants or their products necessary to constitute the offence.
Subdivision 4—Sale of equipment for use in connection with consumption
of controlled drugs
33D—Sale of equipment
A person who—
(a)
sells a piece of equipment for use in connection with the smoking, consumption
or administration of a controlled drug, or the preparation of such a drug for
smoking, consumption or administration; or
(b) has
possession of a piece of equipment, intending to sell it for such use,
is guilty of an offence.
Maximum penalty: $2 000 or imprisonment for 2 years, or both.
Division 3—Offences involving children and school zones
33E—Application of Division
(1) A person is not
guilty of an offence against this Division if, at the time of the offence, the
person was a child.
(2) Subject to
subsection (3), a person may be guilty of an offence against this
Division involving another person who was a child whether or not the person
knew that the other person was a child.
(3) However, it is a
defence to a charge of an offence against this Division involving another who
was a child if it is proved that the defendant believed on reasonable grounds
that the other person had attained 18 years of age.
33F—Sale, supply or administration of controlled drug to child
A person who—
(a)
sells, supplies or administers a controlled drug to a child; or
(b) has
possession of a controlled drug intending to sell, supply or administer the
drug to a child,
is guilty of an offence.
Maximum penalty: $1 000 000 or imprisonment for life, or both.
33G—Sale, supply or administration of controlled drug in school zone
(1) A person
who—
(a)
sells, supplies or administers a controlled drug to another person in a school
zone; or
(b) has
possession, in a school zone, of a controlled drug intending to sell, supply
or administer the drug to another person,
is guilty of an offence.
Maximum penalty: $1 000 000 or imprisonment for life, or both.
(2) If, in any
proceedings for an offence against this section it is proved that the
defendant had possession of a trafficable quantity of a controlled drug, it is
presumed, in the absence of proof to the contrary that the defendant had the
relevant intention concerning the sale or supply of the drug necessary to
constitute the offence.
33H—Procuring child to commit offence
A person who procures a child to commit an offence against this Part is guilty
of an offence.
Maximum penalty: $1 000 000 or imprisonment for life, or both.
Division 4—Other offences
33I—Supply or administration of controlled drug
(1) A person
who—
(a)
supplies or administers a controlled drug (other than cannabis, cannabis resin
or cannabis oil) to another person; or
(b) has
possession of a controlled drug (other than cannabis, cannabis resin or
cannabis oil) intending to supply or administer the drug to another person,
is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(2) A person
who—
(a)
supplies or administers cannabis, cannabis resin or cannabis oil to another
person; or
(b) has
possession of cannabis, cannabis resin or cannabis oil intending to supply or
administer the cannabis, cannabis resin or cannabis oil to another person,
is guilty of an offence.
Maximum penalty: $2 000 or imprisonment for 2 years, or both.
33J—Manufacture of controlled drugs
A person who manufactures a controlled drug is guilty of an offence.
Maximum penalty: $35 000 or imprisonment for 7 years, or both.
33K—Cultivation of controlled plants
(1) A person
who—
(a)
cultivates a controlled plant (other than a cannabis plant); or
(b)
cultivates more than the prescribed number of cannabis plants; or
(c)
cultivates a cannabis plant intending to supply the plant or to supply or
administer any product of the plant to another person,
is guilty of an offence.
Maximum penalty: $2 000 or imprisonment for 2 years, or both.
(2) A person who
cultivates not more than the prescribed number of cannabis plants is guilty of
an offence.
Maximum penalty: $500.
33L—Possession or consumption of controlled drug etc
(1) A person
who—
(a) has
possession of a controlled drug (other than cannabis, cannabis resin or
cannabis oil); or
(b)
smokes, consumes or administers to himself or herself, or permits another
person to administer to him or her, a controlled drug (other than cannabis,
cannabis resin or cannabis oil); or
(c) has
possession of any piece of equipment for use in connection with the smoking,
consumption or administration of a controlled drug (other than cannabis,
cannabis resin or cannabis oil), or the preparation of such a drug for
smoking, consumption or administration,
is guilty of an offence.
Maximum penalty: $2 000 or imprisonment for 2 years, or both.
(2) A person
who—
(a) has
possession of any cannabis, cannabis resin or cannabis oil; or
(b)
smokes or consumes any cannabis, cannabis resin or cannabis oil; or
(c) has
possession of any piece of equipment for use in connection with the smoking or
consumption of cannabis, cannabis resin or cannabis oil, or the preparation of
cannabis, cannabis resin or cannabis oil for smoking or consumption,
is guilty of an offence.
Maximum penalty: $500.
Division 5—General provisions relating to offences
33M—Interpretation
In this Division—
"controlled substance" means a controlled drug, controlled precursor or
controlled plant.
33N—Aggregation of offences
(1) If—
(a) a
person has committed offences against this Part in relation to different
batches of controlled substances (whether or not controlled substances of the
same kind); and
(b) the
offences were committed by the person on the same occasion or within 7 days of
each other or in the course of an organised commercial activity relating to
controlled substances carried on by the person,
the person may be charged with a single offence against this Part in respect
of all of the different batches of controlled substances and, subject to
section 33O, the quantity of controlled substances concerned for the
purposes of that offence is the total quantity of the controlled substances in
the different batches.
(2) If the prosecution
seeks to rely on this section to charge a person with a single offence in
respect of different batches of controlled substances—
(a) the
fact that the prosecution intends to do so must be set out in the charge; and
(b) the
charge must contain adequate particulars of the defendant's conduct in
relation to each of the batches or in relation to the total quantity of the
controlled substances in the different batches; and
(c) it
is not necessary for the prosecution to specify, if the charge relates to
conduct of the defendant on different occasions, the exact dates of each
occasion or to specify the exact quantity of each batch.
(3) The presumption
under section 32(5), 33(4) or 33B(5) may only apply in a case where the
prosecution seeks to rely on this section if—
(a) the
charge relates to conduct of the defendant on the same occasion; or
(b) the
charge relates to conduct of the defendant on different occasions within 7
days of each other and on at least one occasion involved a trafficable
quantity of a controlled substance.
(4) Nothing in this
section prevents a person being charged with separate offences in respect of
different batches of controlled substances.
(5) However, if a
person has been convicted or acquitted of a single offence against this Part
in respect of different batches of controlled substances, the person may not
be charged with a separate offence in respect of any of the batches.
(6) A person may not
be charged with a single offence against this Part in respect of different
batches of controlled substances if the person has been convicted or acquitted
of a separate offence in respect of any of the batches.
33O—Offences involving more than one kind of substance
(1) If a person is
charged with a single offence against this Part and the charge relates to more
than one kind of controlled substance, the quantity of the
controlled substances for the purposes of the charge is to be determined as
follows:
(a) the
quantity is a trafficable quantity if the sum of the fractions obtained by
dividing the actual quantity of each kind of controlled substance by the
quantity prescribed in relation to that kind of controlled substance (in its
pure form) for the purposes of the definition of "trafficable quantity in
section 4 is equal to or greater than 1;
(b) the
quantity is a commercial quantity if the sum of the fractions obtained by
dividing the actual quantity of each kind of controlled substance by the
quantity prescribed in relation to that kind of controlled substance (in its
pure form) for the purposes of the definition of "commercial quantity in
section 4 is equal to or greater than 1;
(c) the
quantity is a large commercial quantity if the sum of the fractions obtained
by dividing the actual quantity of each kind of controlled substance by the
quantity prescribed in relation to that kind of controlled substance (in its
pure form) for the purposes of the definition of "large commercial quantity in
section 4 is equal to or greater than 1.
(2) Where there is no
quantity prescribed in relation to a particular kind of controlled substance
in its pure form for the purposes of the relevant definition, the quantity of
that controlled substance must be disregarded for the purposes of a
calculation under this section.
33P—Knowledge or recklessness with respect to identity or quantity
(1) In any proceedings
against a person for an offence against this Part relating to a
controlled substance, the prosecution must establish that the person knew, or
was reckless with respect to, the fact that the substance was or was to be a
controlled substance.
(2) The prosecution
need not establish that the person knew, or was reckless with respect to, the
particular identity of the controlled substance.
33Q—Alternative conviction—mistake as to identity of
controlled substance
(1) If, in any
proceedings against a person for an offence against this Part relating to a
particular quantity of a controlled substance—
(a) the
court is satisfied that, at the time of the conduct constituting the offence,
the person was under a mistaken belief about the identity of the
controlled substance; and
(b) the
person would have been guilty of another equivalent or lesser offence against
this Part if his or her mistaken belief had been correct,
the court may find the person not guilty of the offence charged but guilty of
the other equivalent or lesser offence (and the person is liable to be
punished accordingly).
(2) The burden of
proving a mistaken belief as to the identity of a controlled substance lies on
the defendant.
(3) For the purposes
of this section, an equivalent or lesser offence is an offence for which the
maximum penalty is the same as or less than the maximum penalty for the
offence charged.
33R—Alternative verdicts
(1) If, in any
proceedings against a person for an offence against this Part, the court is
not satisfied that the person committed the offence but is satisfied that the
person committed another equivalent or lesser offence against this Part, the
court may find the person not guilty of the offence charged but guilty of the
other equivalent or lesser offence (and the person is liable to be punished
accordingly).
(2) For the purposes
of this section, an equivalent or lesser offence is an offence for which the
maximum penalty is the same as or less than the maximum penalty for the
offence charged.
33S—No accessorial liability for certain offences
Section 267 of the Criminal Law Consolidation Act 1935 does not
apply—
(a) in
relation to an offence against section 32, 33 or 33B; or
(b) in
circumstances prescribed by regulation.
Division 6—Procedure in relation to simple possession offences