Supplying a Controlled Drug to a Child

The ACT Parliament views the offence of Supplying a Controlled Drug to a Child as particularly heinous, with penalties of up to four times the maximum for similar offences which do not involve children. Pursuant to Section 625 of the Criminal Code 2002, the offence encompasses both supply, and intent to supply. A child is defined to be an individual under 18 years old.

The term “controlled drug” is broad and is defined to be “a substance prescribed by regulation as a controlled drug, but does not include a growing plant”. A list of prescribed substances can be found in the Criminal Code Regulation 2005, and include both controlled medicines and prohibited substances. Well-known examples including morphine, cocaine, methadone, cannabis and codeine.

Penalties the Court Can Impose

The maximum penalty for the offence will depend on the whether the drug supplied, or intended to be supplied, was cannabis or another controlled drug, and the quantity of cannabis alleged.

For a controlled drug other than cannabis, the maximum penalty that can be imposed is a fine of 2000 penalty units and/or 20 years imprisonment. This is contrasted against a supply offence to an adult, where the maximum penalty is a fine of up to 500 penalty units and/or 5 years imprisonment.

Where the controlled drug is cannabis, the maximum penalty that can be imposed is a fine of up to 500 penalty units and/or 5 years imprisonment. This is contrasted for the offence of supply (traffic) cannabis and does not involve a child, where the maximum penalty is a fine of up to 300 penalty units and/or 3 years imprisonment.

Where the quantity of cannabis is not less than the trafficable amount, 300 grams, the maximum penalty that can be imposed is a fine of up to 1000 penalty units and/or 10 years imprisonment. For the offence of trafficking in a trafficable quantity of cannabis and there is no supply to a child alleged, the same maximum penalties apply.

However, the Court can impose a range of penalties including:

• Imprisonment
• Intensive Correction Order
• Suspended Sentence
• Community Service Order (CSO)
• Good Behaviour Order
• Fine
• Section 17 (ACT): Non-conviction Order

What Actions Might Constitute Supply a Controlled Drug to a Child?

Examples include:

• You meet up with your supplier and buy some ketamine before meeting up with your friends. You share the ketamine with your friends, who are under 18 years old, whilst you are 18 years old or above.
• You are at a house party doing lines of cocaine, a random girl approaches you – you don’t know how old she is but she looks like a teenager. She asks you if you have more, and offers to pay you cash and gives you her phone number. You tell her you need the money tomorrow and let her do a line. You are over 18 years old, and she ends up being 16.
• Your little brother knows you have some cannabis stashed at home. He sends you text message asking if he can use some to roll a joint. He is 15 years old. You agree.

Where you possess more that the trafficable quantity of a controlled drug, there is a presumption of possession for purposes of supply.

What the Police Must Prove

To convict you for supplying a controlled drug to a child, the Prosecution must prove beyond reasonable doubt:

• that you supplied a substance, or possessed a substance with intention to supply;
• the substance was a controlled drug;
• the recipient, or intended recipient, was a child;
• you were not authorised to supply the drug under the Medicines, Poisons and Therapeutic Goods Act 2008.

“Supply” is defined under the legislation to be “supply by way of sale or otherwise” and “agree to supply”. It therefore does not require the action of supply to actually occur for the offence to be made out.

Possible Defences

Possible defences include:

• to argue the substance was not a controlled drug;
• to argue that you did not intend to supply the drug;
• to argue that you did not supply the drug;
• to argue that you did not have reasonable grounds to believe the recipient of the drug was a child.

Which Court Will Hear Your Matter?

For matters involving supply of a controlled drug other than cannabis to a child, the ACT Supreme Court will hear your matter.

For matters involving supply cannabis to a child, whether or not the quantity is a trafficable quantity, it may be dealt with in either the ACT Magistrates Court or the ACT Supreme Court, depending what the Prosecution and/or you elect to do.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.