Synthetic drugs were not always illegal and, indeed, only some types of synthetic drugs are illegal in New South Wales. Some synthetic drugs are currently being referred to and marketed as “legal highs” despite being illegal. The types of synthetic drugs that are illegal are ever changing. As such, the use or possession of synthetic drugs can be somewhat of a grey area.
What is a synthetic drug?
Generally speaking, synthetic drugs are chemical compounds manufactured to mimic or produce similar effects to well-known prohibited drugs. Chemical structures or compounds are designed by chemists to produce similar ‘highs’ or effects to prohibited drugs. However they are not technically illegal unless the specific chemical structure or compound is specifically prohibited under the relevant legislation.
Continual changes in chemical constituents or compounds used in synthetic drugs pose a significant challenge to the legislature in relation to synthetic drugs offences. This is because when the legislature outlaws or prohibits one synthetic drug, chemists can slightly alter the chemical constituent or compound. The result is that the synthetic drug has similar effects, but is not technically a prohibited drug because of the slightly different structure.
To aid in the prosecution of offences legislation was passed which added the category of “analogue” to the Drug Misuse and Trafficking Act. In basic terms, if the synthetic substance is chemically similar enough and produces a psychotropic effect, then it will be treated the same as the substance it is mimicking for the purposes of the legislation.
When did synthetic drugs become illegal?
In 2013 and 2016 there were amendments made to the Drug Misuse and Trafficking Act (NSW) which made the possession, supply and manufacture of Schedule 9 drugs illegal in NSW. Schedule 9 Drugs are defined in the Poisons Standard.
By definition, synthetic drugs fall into the category of Schedule 9 drugs for the purposes of the legislation. This is a “catch-all” to accommodate substances that may be similar to but not the exact same chemical compound as those prescribed in Schedule 1 of the Drugs Misuse and Trafficking Act.
Additionally, many synthetic drugs, including 25i-NBOMe have been specifically added to Schedule 1 of the Drugs Misuse and Trafficking Act making them prohibited drugs in their own right. Each of these synthetic drugs have weights assigned for small, trafficable, indictable and commercial quantities and they are prosecuted in the same way as other prohibited drugs, such as cannabis, cocaine and MDMA.
A significant number of synthetic drugs are now classified as prohibited drugs. As such a person can be charged under the general “offences in the Drug Misuse and Trafficking Act.
Therefore, a person who is in possession of synthetic cannabis may be charged with Possess Prohibited Drug, much as they would have been if they had been in possession of ‘real’ cannabis.
Alternatively, a person may be charged relying on the analogue provisions, or by way of the schedule 9 drug definition, both of which are outlined above.
What Must The Police Prove?
For a substance to be classified as an analogue of a prohibited drug it must:
- have psychotropic properties; and
- be structurally similar to a prohibited drug prescribed by Schedule 1.
The requirements prescribed by Schedule 1 of structural similarity involve very complex legal principles and will usually require expert evidence. If you have been charged with an offence relating to synthetic drugs, it may be that an expert is required to define and analyse chemical structures.
A Case Study
25i-NBOMe is a synthetic drug, sometimes known as “C-Boom” or “Boom”, 25I-NBOMe and its relatives are hallucinogenic drugs which can cause a variety of intense experiences and in some cases render the user completely unable to function. The chemical names as they appear on the Schedule of Prohibited Drugs are as follows:
- N-(3-methoxylbenzyl)-2,5-dimethoxy-4-iodophenethylamine (25I-NBOMe)
- N-(2-methoxylbenzyl)-2,5-dimethoxy-4-bromophenethylamine (25b-NBOMe)
- N-(2-methoxylbenzyl)-2,5-dimethoxy-4-chlorophenethylamine (25c-NBOMe)
25I-NBOMe has a relatively low media profile and became illegal to possess or supply in 2013. Despite the low profile, there are an increasing number of 25I-NBOMe cases coming before the criminal justice system.
The maximum penalty for supplying a “large commercial quantity” of any prohibited drug is life imprisonment with a standard non-parole period of 15 years.
The “large commercial quantity” for 25I-NBOMe is just two grams. This is in stark contrast with other drugs. The large commercial quantity of ecstasy, for example, is 500 grams. In other words, supply of just a few doses of 25I-NBOMe can expose the offender to the same maximum penalty as for murder.
This is particularly concerning because many users are buying and selling 25I-NBOMe under the mistaken belief that the drug they are dealing with is ecstasy. If you supply two grams of ecstasy you may avoid a conviction altogether. If it turns out the drug is 25I-NBOMe you could potentially spend many years in jail.
If you require any information on synthetic drugs or any other legal matter call us on 1300 038 223 or send us an email.