The Controlled Substances Act 1984 (SA) and related regulations are quite complex but in broad terms distinguish between drug users, who face lesser penalties, and producers or suppliers who generally face greater penalties [see Brief Penalty Summary - Controlled Substances Act (below)]. In addition, the Act distinguishes between controlled drugs, drugs of dependence, prescription drugs, controlled plants (including cannabis) and controlled precursors. There are other categories which are not relevant for the purposes of this chapter. It is important to note upfront that in some very important aspects cannabis is dealt with differently from other substances.
The principal Act was substantially and significantly amended by the Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA). Some of the amendments came into operation on 12 January 2006, with the remainder commencing on 3 December 2007. The provisions as amended only apply to offences committed on or after the date the particular provision came into effect [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA) sch 1 pt 6]. Since 2005, other Acts have introduced further amendments [see Controlled Substances Act 1984 (SA) - Legislative history for relevant Acts].
| RELEVANT OFFENCES AND OFFENCE DATES |
|---|
| When dealing with drug offences under the Controlled Substances Act 1984 (SA), it is very important for the duty solicitor to maintain vigilance in relation to the date an offence is alleged to have occurred, and an awareness of the relevant legislation and regulations in effect at the time of the offence. |
Illicit drug use and other drug-related offences are regulated by both State and Commonwealth legislation. The Controlled Substances Act 1984 (SA) regulates or prohibits ‘the manufacture, production, sale, supply, possession, handling or use of certain poisons, drugs, therapeutic and other substances and ... certain therapeutic devices’. In addition, section 9B of the the Summary Offences Act 1953 covers the sale of drug paraphernalia. Duty solicitors are likely to encounter defendants charged with drug-related offences under these Acts and may be asked to assist with a guilty plea for less serious offences. Whilst the following chapter highlights many drug offences which a duty solicitor is likely to encounter, it is important to acknowledge the limitations placed on the role of the duty solicitor when dealing with drug related offences.
| THE ROLE OF DUTY SOLICITOR |
|---|
| Other than simple possession of cannabis offences, a duty solicitor should not take instructions and have a client enter or even intimate a guilty plea on any other drug-related matter. |
Whilst duty solicitors do not act for defendants charged with Commonwealth drug offences due to the severity of the potential penalties, the following information is included for completeness. Relevant Commonwealth legislation related to illicit drug use is to be found in the Customs Act 1901 (Cth), the Narcotic Drugs Act 1967 (Cth) and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth). In daily practice only offences under the Customs Act 1901 (Cth) are likely to be encountered. That Act is concerned with the movement and control of goods into and out of Australia and contains many other offences not related to drugs.
Further information on Drug Offences is contained in the Law Handbook sections: Drug Offences.
Many drug-related offences raise the issue of possession. Possession is defined as having control over the disposition of a substance or thing, and includes having joint possession of a substance or thing [see Controlled Substances Act 1984 (SA) s 4(1) for definition]. A defendant must know that the drug is in his/her custody and control, and that it is a drug to which the Act applies, although he/she need not know precisely what the drug is [see s 33P]. Prosecution must show that a defendant knew that possession of the drug in question was contrary to the laws relating to illegal drugs, though not necessarily contrary to any particular Act.
There is much case law about the nature of possession. There are many cases where a defendant may have some defence on the basis that his/her association with the substance does not amount to possession. For example, where drugs are found in joint living areas of a shared house, the issue of possession may arise. It is also a defence to prove an honest and reasonable mistake about the nature of the substance possessed [see R v GNN (2000) 78 SASR 293; [2000] SASC 447; Criminal Law SA (Lunn) for relevant case law].
The definition of possession in accordance with section 4(1), came into effect on 3 December 2007, and applies to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
There are various categories of drugs and definitions in accordance with the Controlled Substances Act 1984 (SA), which came into effect on 3 December 2007, and which applies to any offence which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
A controlled drug is a drug of dependence or a substance declared by the regulations to be a controlled drug (but does not include a controlled plant) [see Controlled Substances Act 1984 (SA) s 4(1) for definition].
A drug of dependence is a poison declared by the regulations to be a drug of dependence [see Controlled Substances Act 1984 (SA) s 4(1) for definition].
A controlled plant is a growing cannabis plant or a planted cutting of a cannabis plant (including placement into a growing medium) and any other plant declared by the regulations to be a controlled plant [see Controlled Substances Act 1984 (SA) s 4(1) for definition]. Of note, there no longer needs to be a root system.
A controlled precursor is any substance declared by the regulations to be a controlled precursor [see Controlled Substances Act 1984 (SA) s 4(1) for definition].
A prescription drug is a poison declared by the regulations to be a prescription drug [see Controlled Substances Act 1984 (SA) s 4(1) for definition].
In addition to the Controlled Substances Act 1984 (SA), there are separate sets of regulations which provide schedules of substances for each category of drug (as outlined above). The schedules list particular drugs in accordance with the category of drug, and provide prescribed quantities for each drug for different legal purposes. The prescribed quantities are particularly relevant to those offences related to producers or suppliers as they distinguish between large commercial, commercial, and trafficable offences by reference to the quantity of drug, precursor or plant [see Controlled Substances Act 1984 (SA) s 4(1) for definition of large commercial quantity, commercial quantity and trafficable quantity].
As discussed below, the regulations are particularly important when distinguishing simple possession and user offences from offences related to production and supply.
This schedule lists controlled drugs other than drugs of dependence and includes: MDMA (ecstasy), cannabis (oils, resins and plant material), lysergic acid diethylamide (LSD), and diacetylmorphine/doamorphint (heroin) [see: Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1].
This schedule lists drugs of dependence and includes: methamphetamine/ methlamphetamine (speed), buprenorphine, cocaine , codeine (except where included in sch 2, 3 or 4), methadone, morphine, oxycodone, opium (except the alkaloids noscapine when included in sch 2 and papaverine when included in sch 2 or 4, and pethidine [see Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1; R v Batrachenko [1999] SASC 422 for authority that methylamphetamines and amphetamines are drugs of dependence].
This schedule lists controlled plants , with pt two of the schedule providing the quantity for deeming a cannabis offence to be a large commercial (100 plants), commercial (20 plants) or trafficable (10 plants) offence [see Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 3].
Regulation 8(a) of the Controlled Substances (Poisons) Regulations 2011 lists volatile solvents and includes: gases (butane, propane, nitrous oxide), petrol, amyl and butyl nitrite [see Controlled Substances (Poisons) Regulations 2011 r 8(a); Controlled Substances Act 1984 s 4(1) for definition of volatile solvent].
In addition, these regulations provide for the legitimate manufacture, supply and distribution of drugs of dependence and prescription drugs. The related schedules list the relevant drugs which are subject to the regulations.
Section 45A(8) of the Controlled Substances Act 1984 (SA) provides for the expiation (on-the-spot fine) of simple cannabis offences. This section came into effect on 3 December 2007, and only applies to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
In accordance with section 45A, the following offences are simple cannabis offences:
To summarise, a simple cannabis offence includes offences involving allegations of:
| COMMERCIAL PURPOSE OR SUPPLY |
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| Where there is any suggestion that the possession or cultivation of less than the prescribed amount is for a “commercial purpose” or for “supply” the offence will not be considered as a simple cannabis offence, and “supply” includes supplying to friends on a casual social basis. Any commercial possession of equipment is also not considered a simple cannabis offence. |
A cannabis expiation notice can be either directly served on an alleged offender at the time of a simple cannabis offence or issued by post [see Expiation of Offences Act 1996 (SA) s 6(j)]. An alleged offender has twenty-eight days from (and including) the date of issue of the expiation notice to pay the expiation fee [see s 6(1)(c)]. A simple cannabis offence is expiated upon payment of the fee, making the offender no longer liable for prosecution for that offence [see s 15]. There is no court appearance and no conviction recorded.
Paying the expiation fee for a simple cannabis offence is not an admission of guilt or civil liability and it cannot be considered evidence of such [see Expiation of Offences Act 1996 (SA) s 15(4)]. The expiation of a simple cannabis offence cannot be referred to in any future reports assisting a court to determine sentence for any other offence [see s 15(4)(c)]. Any item seized in connection with the alleged offence is forfeited to the Crown upon expiation of the offence [see s 15(5)].
See Courts and Jurisdiction chapter for further information about the expiation of offences including time limits for the issue of expiation notices and for the commencement of prosecution.
When an alleged offender fails to pay the expiation amount for a simple cannabis offence, a reminder notice is issued. This will attract a further reminder notice fee. If payment of the expiation fee and reminder notice fee is not made, then the Registrar of the Magistrates Court or Youth Court is advised and administratively makes an enforcement order. The alleged offender is then taken to have been convicted and is fined the amount of the unpaid expiation fee with such amount being enforceable under the Fines Enforcement and Debt Recovery Act 2017 (SA) [See Courts and Jurisdiction chapter for further information about the enforcement of unpaid expiation fees].
The expiation fees for simple cannabis offences are set out in schedule 5 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) [see reg 14 and sch 5; and table below].
| Expiation fees for simple cannabis offences (as at September 2020) | ||
|---|---|---|
| Cultivation: | ||
| s 33K(2) | Cultivation of one cannabis plant | $400 |
| s 33L(2)(a) |
Possession of cannabis:
Amount less than 25g |
$250 |
| Amount 25g or more but less than 100g | $400 | |
|
Possession of cannabis resin:
Amount less than 5g |
$250 | |
| Amount 5g or more but less than 20g | $400 | |
| Cannabis use: | ||
| s 33L(2)(b) | Smoking or consuming cannabis, cannabis resin (other than an offence committed in a public or prescribed place) | $250 |
| Possession of equipment: | ||
| s 33L(2)(c) | Possession of equipment (one or more pieces) for smoking or consuming, or for preparation of cannabis or cannabis resin for smoking or consuming (not being an offence involving possession of such equipment for a commercial purpose) | $250 |
| Where possession of equipment (as above) is accompanied by another simple cannabis offence relating to the possession, smoking or consumption of cannabis or cannabis resin | $130 | |
Before a prosecution can commence for a simple cannabis offence, a cannabis expiation notice must first be given to the alleged offender stating that the offence may be expiated by payment of the prescribed expiation fee [see Controlled Substances Act 1984 (SA)s 45A(2)]. Non-compliance with the expiation procedure does not of itself invalidate a prosecution [see s 45A(7); and see Courts and Jurisdiction chapter for further information about time limits for the commencement of prosecution].
Defendants who elect to be prosecuted for the offence will be summonsed to appear in court [see Expiation of Offences Act 1996 (SA) ss 6(k) and 8]. In addition, defendants who are alleged to have consumed cannabis in a public or prescribed place will be summonsed to appear in court. A public or prescribed place includes a motor vehicle, train, tram or any other vehicle whilst located in a public place [see Controlled Substances Act 1984 ss 45A(8) and 33L(2)(b); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 15(3)]. Public place is widely defined and would include, for example, consumption inside a private vehicle parked in a hotel car park.
| CHECK THE COURT FILE |
|---|
| The duty solicitor should always check with prosecution and on the court file to see whether a cannabis expiation notice was issued. Where a defendant finds themself before a court for a simple cannabis offence and no expiation notice has been given, the sentencing discretion should ordinarily be exercised so that the penalty does not exceed the amount of the appropriate expiation notice. Where court fees are to be paid this may entail reduction of the fine to take into account the extra cost of court fees. |
It is an offence to have possession of, or to smoke or consume, cannabis, cannabis resin or cannabis oil, or have possession of any equipment connected with smoking or consumption. The maximum penalty is a fine of $500 [see Controlled Substances Act 1984 (SA) s 33L(2) which came into effect on 3 December 2007, and only applies to offences which occurred on or after that date [see also Controlled Substances (Serious Drug Offences) Amendment Act 2005].
It is an offence to supply or administer cannabis, cannabis resin or cannabis oil to another person or to have possession with an intention to supply or administer to another person. The maximum penalty is a fine of $2 000 or imprisonment for two years, or both [see Controlled Substances Act 1984 (SA) s 33I(2)].
To “supply” is defined as providing, distributing or offering to provide or distribute [see Controlled Substances Act 1984 s 4(1) for the definition; and see cases R v Urbanski (2010) 108 SASR 369; [2010] SASCFC 57and R v Pelham (1995) 82 A Crim R 455 for examples of relevant case law]. It is important to remember that “supply” includes supplying to friends on a casual social basis.
Section 33I came into effect on 3 December 2007, and only applies to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
Under section 33K(1), it is an offence to:
The maximum penalty is a fine of $2,000 or imprisonment for 2 years, or both [see s 33K(1)]. For the purposes of section 33K, the prescribed number of plants is five [see Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 7].
In addition, section 33K(2) provides an offence for the cultivation of not more than the prescribed number of cannabis plants (five plants). The maximum penalty is a fine of $1 000 or imprisonment for 6 months, or both [see s 33K(2)]. A court sentencing for a simple cannabis offence (being one plant, within the meaning of section 45A) must not impose a sentence of imprisonment in relation to that offence [see ss 33K(2) and 33K(3)].
Section 33K (with the exception of the following provisions) came into effect on 3 December 2007, and only applies to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
The following sub-sections came into effect on 10 September 2009, and only apply to offences committed on or after that date [see Controlled Drugs, Precursors and Cannabis Amendment Act 2008 (SA)]:
It is an offence to cultivate controlled plants (including cannabis) with the intention of selling any of them, or their products or whilst believing another person intends to sell any of them or their products [see Controlled Substances Act 1984 (SA) s 33B for penalties relating to large commercial quantity, commercial quantity and trafficable quantity].
Section 33B came into effect on 3 December 2007, and applies to offences committed on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
In accordance with the Controlled Substances Act 1984 (SA), to cultivate a controlled plant means to:
This definition came into effect on 3 December 2007, and only applies to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
A person takes part in the process of the cultivation of a controlled plant if the person directs, takes part or participates in any step, or causes any step to be taken in the process of cultivation [see Controlled Substances Act 1984 (SA) s 4(4)]. A step in the process of the cultivation of a controlled plant includes:
Section 4(7) came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
The Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule Three, Part Two, provides the relevant prescribed amounts for the cultivation of cannabis as: large commercial quantity: 100 plants; commercial quantity: 20 plants; trafficable quantity: 10 plants. Where the amount of cannabis is more than the prescribed amount for a trafficable offence (that amount being 10 plants), cultivation is deemed to be for the purpose of sale or supply [see Controlled Substances Act 1984 (SA) s 33B(5)].
Section 33B came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
It is an offence to cultivate a controlled plant (one) whilst intending to sell it or any of its products, or knowing another person intends to sell it or its products. The maximum penalty is a fine of $50 000 or imprisonment for 10 years, or both [see Controlled Substances Act 1984 (SA) s 33B(3)]. An offence involving the cultivation of one cannabis plant must be prosecuted in the Magistrates Court as a summary offence. However, that court must commit the matter to the District Court for sentence where it determines the penalty for the offence should exceed imprisonment for two years [see s 33B(4); R v Tennant (No2) [2010] SASCFC 26 for an example].
Section 33B came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
It is an offence to sell or have possession of a controlled plant or controlled plants (including cannabis) with an intention of selling that plant or product [see Controlled Substances Act 1984 (SA) s 33C for penalties relating to large commercial quantity, commercial quantity and trafficable quantity]. To “sell” is broadly defined and includes selling, bartering, exchanging; any offers or agreements to sell, barter or exchange; or to expose for sale, barter or exchange [see s 4(1) for definition].
Section 33C and the definition of “sell” came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
Detailed information in relation to taking a step in the process of sale is to be found later in this chapter in the Drugs of dependence section.
Where the amount of cannabis in a person’s possession is more than the prescribed amount for a trafficable offence (that amount being 10 plants), possession is deemed to be for the purpose of sale or supply [see Controlled Substances Act 1984 (SA) s 33C(5); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 3 pt 2]. The onus is on the accused to establish that possession was not for the purpose of sale.
Section 33C came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
It is an offence to sell or have possession of a controlled plant (one) with an intention of selling that plant or its products. The maximum penalty is a fine of $50 000 or imprisonment for 10 years, or both [see Controlled Substances Act 1984 s 33C(3)]. An offence involving a cannabis plant (one) must be prosecuted in the Magistrates Court as a summary offence. However, that court must commit the matter to the District Court for sentence where it determines the penalty for the offence should exceed imprisonment for two years [see s 33C(4)].
Section 33C came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
The Controlled Substances Act 1984 s 32 outlines the offences and related penalties for trafficking in controlled drugs. Section 32(3) provides it is an offence to traffic in a controlled drug [see s 32(3)]. An offence against s 32(3) involving cannabis, cannabis resin or cannabis oil must be prosecuted in the Magistrates Court as a summary offence. However, that court must commit the matter to the District Court for sentence where it determines the penalty for the offence should exceed imprisonment for two years [see s 33C(4); R v Kardogeros [1991] 1 VR 269; (1990) 49 A Crim R 352 ; [1991] VicRp 19 for consideration of possession for personal use]. More information in relation to trafficking is available under Trafficking in controlled drugs below.
Section 32 came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
The Controlled Substances Act 1984 (SA) sets up a procedure in relation to simple possession offences to the effect that where such an offence has been committed, the matter is referred to a drug assessment service to determine whether the person requires an intervention to assist that person overcome any personal problems which led to the misuse of drugs. The assessment service is able to refer the person to education, preventative or rehabilitation programs [see also Specialist Courts chapter]. The person is compelled to comply with the recommendations of the drug assessment service through an undertaking to comply with the recommendations, and the threat of prosecution should they fail to comply.
Section 33L and relevant definitions under s 4(1) came into effect on 3 December 2007 and only apply to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
A simple possession offence is an offence against s 33L(1) other than an offence involving a prescribed controlled drug [see Controlled Substances Act 1984 s 4(1) for interpretation]. It is an offence to have possession of a controlled drug, or smoke, consume or administer a controlled drug to oneself, or permit another person to administer a controlled drug to oneself [see ss 33L(1)(a) and 33L(1)(b); s 4(1) for definition of controlled drug which includes a drug of dependence, and for definition of drug of dependence]. This offence does not include cannabis, cannabis resin or cannabis oil.
It is an offence to have possession of any 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 [see Controlled Substances Act 1984 s 33L(1)(c)]. The maximum penalty is a fine of $2 000 or imprisonment for 2 years, or both [see s 33L(1)]. This offence does not include cannabis, cannabis resin or cannabis oil, or possession of a syringe or needle for use in connection with the administration of a controlled drug [see Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 8].
Where a person is alleged to have committed a simple possession offence, the police officer must refer the person to an accredited Drug Assessment Service and give the person a notice that sets out the particulars of the place, date and time the person must attend that service [see Controlled Substances Act 1984 (SA) s 36(1); s 4(1) for definition of assessment service].
This procedure does not apply to a child who is alleged to have committed a simple possession offence [see Controlled Substances Act 1984 (SA) s 34; Youth Court chapter]. The referral to the assessment service operates as a stay of proceedings for the alleged offence [see Controlled Substances Act 1984 (SA) s 36(3)]. A copy of the referral is forwarded to the nominated assessment service which then requires the person to appear before an assessment panel [see s 36(2)]. Where that person is in custody, the prison manager must arrange for the person to be brought before the panel [see s 39].
The treatment and assessment service may require a person to appear before it and may interview or examine the person alleged to have committed the offence. The person may be required by the assessment panel to provide written consent for access to any medical and treatment records (including past drug treatment), and their criminal record [see Controlled Substances Act 1984 (SA) ss 37(2)(a)(i) and 37(2)(a)(ii)(B)]. The assessment panel may also require the person to submit to interviews or examination to determine whether the person is experiencing physical, psychological or social problems related to the misuse of drugs and, if so, to recommend appropriate treatment [see ss 37(2)(b) and 37(2)(c)]. The assessment service can require the person to submit to recommended treatment by way of an undertaking to submit to treatment.
Following assessment, the assessment service may require the person alleged to have committed the offence to enter into a written undertaking agreeing to the treatment they will undertake, participation in an education, preventative or rehabilitation program, and any other matters the assessment service deems necessary to assist the person to overcome any personal problems which led to the misuse of drugs [see Controlled Substances Act 1984 (SA) s 38(1)]. The undertaking must not exceed a period of six months [see ss 38(4); s 38(5) for varying terms of undertaking; s 38(6) for notification of variation to the Commissioner of Police].
Upon the entering of an undertaking, any complaint laid against the person for the alleged simple possession offence must be withdrawn. Where the person has been remanded into custody for the alleged simple possession offence (but not otherwise subject to detention) that person must be released from custody [see Controlled Substances Act 1984 (SA) ss 38(3)(b) and 38(3)(c)]. Where the person is subjected to bail conditions in relation to the alleged offence, the bail agreement must be discharged [see s 38(3)(c)].
Upon expiry of an undertaking, the person who entered into the undertaking is immune from prosecution for the alleged offence [see Controlled Substances Act 1984 (SA) s 40(4)]. The successful completion of the undertaking means that no further legal action can be taken.
Prosecution of a simple possession offence cannot commence unless the person has first been referred to an assessment service and the referral has been terminated by that service [see Controlled Substances Act 1984 (SA) s 40(1)]. Failure to successfully complete an undertaking will result in charges being laid in court. If the referral is terminated by the service, evidence of anything said or done by the person in the course of assessment, or whilst carrying out an undertaking, or the reasons for termination of service is not admissible in any proceedings against the person in relation to the alleged simple possession offence [see s 40(3)]. The fact that a person alleged to have committed a simple possession offence has participated in an assessment or entered into an undertaking does not constitute an admission of guilt, and may not be regarded as evidence tending to establish guilt in relation to the alleged offence [see s 40(2)].
Where a defendant is charged with a more serious offence, but is subsequently convicted for a simple possession offence, the sentence should equate with the penalty that might have been imposed had the defendant been referred to an assessment service [see R v McMillan (2002) 81 SASR 540 for an example].
Failure to cooperate with the assessment process and recommendations for intervention will result in the termination of the referral and the person will then be required to attend before the court. The referral to the assessment service may be terminated in writing, in person or by post. Relevant reasons for termination of a referral are:
A copy of the notice of the referral termination must be forwarded to the Commissioner of Police and include a summary of the reason(s) for termination of service [see Controlled Substances Act 1984 (SA) ss 37(5) and 37(4)].
| CHECK THE COURT FILE |
|---|
| The duty solicitor should always check with prosecution and the court file to see whether there is a notice of termination of service as prosecution cannot commence without this notice. Where a person is brought before the court in respect of a simple possession offence, having breached a drug assessment and treatment service undertaking, the duty solicitor should consider having their matter referred to the Drug Court for assessment [see Specialist Courts chapter]. |
It is an offence to supply or administer a drug of dependence to another person or have possession of a drug of dependence whilst intending to supply or administer the drug to another person. The maximum penalty is a fine of $50 000 or imprisonment for 10 years, or both [see Controlled Substances Act 1984 (SA) s 33I(1)]. This offence does not include cannabis, cannabis resin or cannabis oil. To “supply” is defined as providing, distributing or offering to provide or distribute [see s 4(1) for definition; and see Jurkovic v R (1981) 6 A Crim R 215; [1981] FCA 221 for an example of supply and possession for personal use]. Remember, “supply” includes supplying to friends on a casual social basis.
Section 33I came into effect on 3 December 2007, and only applies to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
In accordance with the Controlled Substances Act 1984 (SA) s 33, it is an offence to manufacture a drug of dependence intending to sell it or knowing another person intends to sell it [see s 33 for penalties relating to large commercial quantity, commercial quantity and trafficable quantity; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1 pt 2 for the relevant prescribed amounts]. To “manufacture” means to take part in any process whereby the drug is extracted, produced or refined, and includes taking part in any process of manufacture of the substance [see Controlled Substances Act 1984 s 4(1)].
Section 33 and the definition of “manufacture” in section 4(1) came into operation on 3 December 2007, and apply to offences committed on and after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
A person takes part in the process of the manufacture of a controlled drug if the person directs, takes part in or participates in any step, or causes any step to be taken in the process of manufacture [see Controlled Substances Act 1984 (SA) s 4(4)]. A step in the process of the manufacture of a controlled drug includes:
Sections 4(4) and 4(6) came into effect on 3 December 2007, and apply to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
The manufacture of more than the prescribed amount for a trafficable offence is deemed to be for the purpose of sale or supply [see Controlled Substances Act 1984 s 33(4); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1 pt 2 for the relevant prescribed amounts]. The onus is on the accused, on the balance of probabilities, to establish that possession was not for the purpose of sale [see R v Nguyen (2010) 108 SASR 66; [2010] SASCFC 23 for an example].
Section 33(4) came into effect on 10 September 2009, and applies to any offences which occurred on or after that date [see Controlled Substances Act (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008].
| POSSESSION FOR PERSONAL USE |
|---|
| If a defendant’s instructions are that despite the amount, possession was not for the purposes of sale or supply, the prosecution should be approached and an attempt made to agree to the fact that in this case possession was for personal use. If this cannot be agreed, the matter will need to proceed to trial, where the onus of proof is on the accused person to establish that there was no commercial motive [see R v Kotz [2009] SADC 138 for an example]. |
In accordance with the Controlled Substances Act 1984 (SA), to “sell” has a broad meaning and includes selling, bartering, exchanging; any offers or agreements to sell, barter or exchange; or to expose for sale, barter or exchange [see s 4(1) for definition].
The definition of “sell” according to s 4(1) came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
A person takes part in the process of the sale of a controlled drug if the person directs, takes part in or participates in any step, or causes any step to be taken in the process of sale [see Controlled Substances Act 1984 (SA) s 4(4)]. A step in the process of the sale of a controlled drug includes:
Sections 4(4) and 4(5) came into effect on 3 December 2007, and apply to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
The following are offences under the Controlled Substances Act 1984 (SA):
These sections concern substances which either have, or were intended to have, or are promoted as having, pharmacological effects similar to a controlled drug. They are also about substances which are promoted as legal alternatives to a controlled drug, or are sold as controlled drugs but are actually different substances.
Under these sections, manufacturing includes taking part in the process. Taking part in a step in the process is broadly defined and includes things such as: getting together or hiding equipment, substances or materials; arranging or providing money to fund any part of the process; transporting and loading materials; and allowing your house to be used for the process [see further s 33LC(1)-(3)].
Under s 33LE(2) the prosecution does not have to prove that the defendant promoted the substance as having as having pharmacological effects similar to those of a particular controlled drug; or as being a legal alternative to controlled drug; or in a way that is intended, or likely, to cause a person to believe that the substance is a controlled substance or has similar effects as one, or is a legal alternative to one.
These offences can be committed even if the substance is marked ‘not for human consumption’, or similar labelling such as stating that it is not an alternative to a controlled drug [s 33LC(4)].
The Court can prohibit someone from running a business if they have been convicted of committing any of these offences in the course of running a business. The Court can also make other orders that it thinks is appropriate [see further s 33T].
Penalties:
In accordance with the Controlled Substances Act 1984 (SA) to traffic in a controlled drug includes selling a drug, having possession of the drug intending to sell it, or taking part in the process of sale of the drug [see s 4(1) for definition]. Section 32 provides the penalties for trafficking in controlled drugs. The maximum penalties vary in accordance with the quantity of drug found in the possession of the person and whether the person is found to be in possession of a large commercial quantity or commercial quantity [see s 32(1) for large commercial quantity; R v Clift [2010] SASC 79for an example; s 32(2) for commercial quantity].
In addition, s 32(3) prescribes an offence in trafficking in a controlled drug with no reference to quantity [see s 32(3)]. An offence under section 32(3) is recognised as a lesser offence because it lacks the element of commerciality [see R v Peel [2009] SASC 280 ]. It is also an offence to traffic a controlled drug in a prescribed area [see s 32(2a)]. Prescribed areas include areas such as hotels, restaurants, entertainment venues and casinos [see ss 32(2a) and 32(6)].
From 29 September 2022, but applying retrospectively, where there is no prescribed quantity of a drug or precursor in its pure form, the quantity of the mixed form will apply [Controlled Substances (Pure Amounts) Amendment Act 2022 (SA)].
Section 32(5) of the Controlled Substances Act 1984 (SA) provides that where it is proved the defendant had possession of a trafficable quantity of a controlled drug and it is alleged the defendant was taking part in the process of sale, it is presumed (in the absence of proof to the contrary) that the defendant was acting for the purpose of sale and had the relevant belief concerning the sale of the drug [see Controlled Substances Act 1984 (SA) s 32(5)(a)]. In any other case, where the defendant had possession of a trafficable quantity of a controlled drug (in the absence of proof to the contrary) the defendant is deemed to have the relevant intention concerning the sale of the drug [see s 32(5)(b)].
It is an offence to sell, supply, or administer a controlled drug to a child, or have possession of a controlled drug for the purpose of sale, supply or administration of the drug to a child. The maximum penalty is a fine of $1 000 000 or imprisonment for life, or both [see Controlled Substances Act 1984 (SA) s 33F].
Furthermore, it is an offence to sell, supply, or administer a controlled drug to another person within a school zone, or have possession for the purpose of sale, supply or administration of the drug to a person within a school zone. The maximum penalty is a fine of $1 000 000 or imprisonment for life, or both [see s 33G]. Where a defendant had in his/her possession a trafficable quantity of a controlled drug within a school zone, it is deemed that the intention was one of sale or supply [see s 33G(2)].
School Zone means the grounds of a primary or secondary school and the area within 500 metres of the boundary of the school [see s 4(1) for definition].
The Controlled Substances Act 1984 (SA) and the Controlled Substances (Poisons) Regulations 2011 (SA) regulate the sale, supply, administration and possession of prescription drugs. In essence, only a medical practitioner, dentist, veterinary surgeon or nurse acting in the ordinary course of his or her profession, a member of a prescribed profession (in accordance with the regulations), or a pharmacist dispensing a prescription, are legally empowered to sell, supply, administer or prescribe a prescription drug (not being a drug of dependence) [see Controlled Substances Act 1984 s 18].
A commonly encountered situation for duty solicitors is where a defendant is alleged to have been found in possession of a prescription drug (not being a drug of dependence) and the defendant is not the person for whom the drug was prescribed or supplied. The maximum penalty for possession of a prescription drug is a fine of $10 000 or 2 years imprisonment [see Controlled Substances Act 1984 (SA) s 18(3)].
| THE ROLE OF DUTY SOLICITOR |
|---|
| Remember that a duty solicitor should not take instructions and have a client enter or even intimate a guilty plea on any drug matter other than simple possession of cannabis offences. |
It is an offence to forge or fraudulently alter or utter a prescription or other document, or to have possession of a prescription or document knowing it to be forged or fraudulently altered with a view to obtaining a prescription drug. The maximum penalty is a fine of $15 000 or imprisonment for five years [see Controlled Substances Act 1984 (SA) s 30(1)].
It is also an offence to knowingly and by false representation obtain a prescription drug or a prescription for a prescription drug. The maximum penalty being a fine of $10 000 or imprisonment for 2 years [see s 30(2)].
It is an offence to provide a false name and address to a person who is prescribing or supplying a prescription drug. The maximum penalty is a fine of $10 000 [see s 30(3)].
It is an offence to sell or supply a volatile solvent to another person where a person suspects or has reasonable grounds to suspect that the other person intends to inhale the solvent, or sell or supply the solvent to a further person for inhalation by that further person. The maximum penalty is a fine of $10 000 or imprisonment for two years [see Controlled Substances Act 1984 (SA) s 19(1)].
Furthermore, it is an offence to purchase a volatile solvent on behalf of another person for that other person to inhale the solvent. The penalty is a fine of $10 000 or imprisonment for two years [see s 19(2)].
It is an offence to sell petrol, diesel fuel, propane, propylene, butane or butylene to a person under 16 years of age. The maximum penalty is a fine of $10 000 [see Controlled Substances Act 1984 (SA) s 19(3); Controlled Substances (Poisons) Regulations 2011 (SA) r 23(1)].
Since 1 April 2020 it is also an offence to sell nitrous oxide to a person under 18 years. The maximum penalty is a fine of $10 000 [see Controlled Substances Act 1984 (SA) s 19(3); Controlled Substances (Poisons) Regulations 2011 (SA) r 23(1a)]. However, it is not an offence to supply nitrous oxide to a person under 18 years, if it is supplied by the employer in their ordinary course of employment, and the business lawfully sells nitrous oxide [see regulation 23(1b)].
Regulation 23A of the Controlled Substances (Poisons) Regulations 2011 (SA) regulates the retail sale of nitrous oxide in South Australia. Nitrous Oxide must not be sold between the hours of 10:00pm and 5:00am, on any day. There are prescribed requirements for retailers in relation to its storage, and displaying a legible notice to customers warning that evidence of a customer's age may need to be produced in order to purchase . Maximum penalties include a fine of $5 000.
It is an offence to sell equipment, or have possession of equipment intending to sell it for use in connection with the smoking, consumption or administration of a controlled drug, or for the preparation of such a drug for smoking, consumption or administration. The maximum penalty is a fine of $10 000 or imprisonment for two years, or both [see Controlled Substances Act 1984 (SA) s 33D].
Section 33D came into effect on 3 December 2007, and only applies to offences committed on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].
It is an offence to sell equipment, or have possession of equipment intending to sell it to a child for use in connection with the smoking, consumption or administration of a controlled drug, or for preparation for smoking, consumption or administration. The maximum penalty is a fine of $20 000 or imprisonment for two years, or both [see Controlled Substances Act 1984 (SA) s 33GA].
Section 33GA came into effect on 8 June 2008, and only applies to offences committed on or after that date [see Summary Offences (Drug Paraphernalia) Amendment Act 2008 SA].
It is an offence to have possession of prescribed equipment without reasonable excuse. Prescribed equipment means a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant; or equipment of a kind prescribed by regulation [see Controlled Substances Act 1984 (SA) s 33LA].
Section 33LA came into effect on 19 October 2008, and only applies to offences committed on or after that date [see Controlled Substances (Possession of Prescribed Equipment) Amendment Act 2007 (SA)].
Under s 9B Summary Offences Act 1953 it is an offence to sell or supply drug paraphernalia. Penalties apply to individuals and also to businesses and there are separate penalties where the sale or supply has been to a minor. To “sell” includes to barter or exchange [see s 9B(7) for definition].
Maximum penalty for sale or supply of prohibited item:
for an individual - $10 000 or 2 years imprisonment
for a body corporate - $50 000
Maximum penalty for sale or supply of prohibited item to a minor:
for an individual - $20 000 or 2 years imprisonment
for a body corporate $100 000
The list of prohibited items includes the following:
A cocaine kit consists of 2 or more of the following items packaged as a unit apparently for the use of cocaine:
Following a conviction for an offence against s 9B, any prohibited item seized as evidence of the offence may be retained by the Commissioner of Police and is forfeited to the Crown [see s 9B(5)].
The Sentencing Act 2017 (SA) sections 3, 4, 10 and 11 prescribe the matters relevant to sentencing which must be considered by a sentencing court [see Sentencing and Guilty Pleas chapters for a detailed discussion of sentencing purposes, principles and factors]. In addition, the Controlled Substances Act 1984 section 44 outlines matters a sentencing court must take into account when sentencing for drug offences. For indictable or minor indictable offences, the sentencing court must take into consideration:
In relation to offences against Part 5 Division 2 or 3 (trafficking, manufacture and sale of controlled drugs, cultivation and sale of controlled plants):
In the case of an offence against s 33F (the sale, supply or administration of a controlled drug to a child), s 33H (procuring a child to commit an offence), s 33I (supply or administer a controlled drug):
In the case of an offence involving possession of a drug of dependence (or a prohibited substance) for the purpose of sale, supply or administration of the drug or substance to another person (not being an offence committed within a school zone):
In determining the penalty for any summary or indictable offence against pt 5 involving a controlled drug (but not cannabis, cannabis resin, or cannabis oil) the penalty must be determined on the basis that all controlled drugs are categorised equally as very harmful [see s 44(2)].
Section 44(1) came into effect on 3 December 2007, and only applies to offences committed on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
Sections 44(2) and 44(3) came into effect on 10 September 2009, and only apply to offences committed on or after that date [see Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008].
BRIEF PENALTY SUMMARY - CONTROLLED SUBSTANCES ACT 1984 (as at September 2021) | ||
|---|---|---|
| Description of offence | Section | Maximum Penalty (Fine/Imprisonment) |
| Prescription Drugs | ||
| Unlawful sale, supply or administer a prescription drug |
18(1) (1a) - (1c) |
$10 000 / 2 years |
| Unlawful possession of a prescription drug (not a drug of dependence) | 18(3) | $10 000 / 2 years |
| Forge or fraudulently alter or utter a prescription or other document to obtain a prescribed drug | 30(1) | $15 000 / 5 years |
| Possession of a forged or fraudulently altered prescription or document to obtain a prescribed drug | 30(1) | $15 000 / 5 years |
| Obtain prescription drug, or a prescription for prescription drug, by false representation | 30(2) | $10 000 / 2 years |
| Obtain prescription drug by using a false name or address | 30(2a) | $10 000 |
| Volatile Solvents | ||
| Sale or supply of volatile solvent for inhalation | 19(1) | $10 000 / 2 years |
| Purchase a volatile solvent for another person for inhalation | 19(2) | $10 000 / 2 years |
|
Sell or supply volatile solvent (petroleum product) to person under 16 years of age Sell or supply volatile solvent (nitrous oxide) to a person under 18 years |
19(3) | $10 000 |
| Controlled Drugs | ||
| Manufacture a controlled drug | 33J(1) | $35 000 / 7 years, or both (for a serious drug offender or an aggravated offence $75 000 / 15 years, or both) |
| Manufacture large commercial quantity of a controlled drug for sale | 33(1) | $1 000 000 / imprisonment for life, or both |
| Manufacture commercial quantity of a controlled drug for sale | 33(2) | $200 000 / 25 years, or both (for a serious drug offender or an aggravated offence $500 000 / imprisonment for life, or both) |
| Manufacture a controlled drug for sale | 33(3) | $50 000 / 10 years, or both (for a serious drug offender or an aggravated offence $75 000/ 15 years, or both) |
| Sale or possession of equipment | ||
| Sale or possession with an intention to sell, of equipment used for the preparation of, or for smoking, consuming or administering a controlled drug | 33D | $15 000 / 3 years, or both (for a serious drug offender or an aggravated offence: $20 000 / 5 years, or both) |
| Sell, supply or administer to a child | ||
| Sell, supply, or administer a controlled drug to a child or possession of a controlled drug intending to sell, supply or administer to a child | 33F | $1 000 000 / imprisonment for life, or both |
| Sale of equipment to a child for use in connection to smoking, consuming, or administering a controlled drug or possession of equipment intended for sale to a child | 33GA | $20 000 / 5 years, or both (for a serious drug offender or an aggravated offence: $30 000 / 7 years, or both) |
| Sell, supply or administer in school zone | ||
| Sell, supply, or administer a controlled drug to a person in a school zone, or possession of a controlled drug in a school zone intending to sell, supply or administer the drug to another person | 33G | $1 000 000 / imprisonment for life, or both |
| Trafficking in controlled drugs | ||
| Traffic in large commercial quantity | 32(1) | $1 000 000 / imprisonment for life, or both |
| Traffic in commercial quantity | 32(2) | $200 000 / 25 years, or both (for a serious drug offender or an aggravated offence $500 000 / imprisonment for life, or both) |
| Traffic in a prescribed area | 32(2a) | $75 000 / 15 years, or both (for a serious drug offender or an aggravated offence $200 000 / 25 years, or both) |
| Traffic in a controlled drug
**see Cannabis section for traffic in cannabis |
32(3) | $50 000 / 10 years, or both (for a serious drug offender or an aggravated offence $75 000 / 15 years, or both) |
| Supply or administer controlled drug | ||
| Supply or administer a controlled drug to another person (not cannabis) | 33I(1)(a) | $50 000 / 10 years, or both (for a serious drug offender or an aggravated offence: $75 000 / 15 years, or both) |
| Possession of a controlled drug with intention to supply or administer to another person (not cannabis) | 33I(1)(b) | $50 000 / 10 years, or both (for a serious drug offender or an aggravated offence: $75 000 / 15 years, or both) |
| Controlled Drug - User Offences | ||
| Possession of a controlled drug (not cannabis) | 33L(1)(a) | $2 000 / 2 years, or both |
| Smoke, consume or administer a controlled drug to oneself or allow another person to administer a controlled drug to oneself | 33L(1)(b) | $2 000 / 2 years, or both |
| Possession of equipment for use in connection with the smoking, consumption, administration, or preparation for use of a controlled drug | 33L(1)(c) | $2 000 / 2 years, or both |
| Equipment for manufacture or cultivation | ||
| Possession or supply of prescribed equipment (hydroponic equipment for cannabis cultivation, equipment for manufacturing controlled drugs, a device comprising a hydraulic compression system and a die capable of being used to compress a powdered substance into blocks) | 33LA | $10 000 / 2 years, or both (for a serious drug offender or an aggravated offence: $20 000 / 5 years, or both) |
| Cannabis | ||
| Cultivate Cannabis for Sale | ||
| Cultivate large commercial quantity of a controlled plant for sale (includes cannabis) | 33B(1) | $1 000 000 / imprisonment for life, or both |
| Cultivate commercial quantity of a controlled plant for sale (includes cannabis) | 33B(2) | $200 000 / 25 years, or both (for a serious drug offender or an aggravated offence: $500 000 / imprisonment for life, or both) |
| Cultivate a controlled plant for sale | 33B(3) |
$50 000 / 10 years, or both (for a serious drug offender or an aggravated offence: $75 000/ 15 years or both) |
| Cultivate a cannabis plant (only) for sale | 33B(4) | As above, but must be prosecuted in Magistrates Court where maximum penalty is 5 years unless referred to District Court for sentence. |
| Sale or Possession of Cannabis for Sale | ||
| Sale of a large commercial quantity of a controlled plant or possession with intention to sell (includes cannabis - prescribed amount - 100 plants) | 33C(1) | $1 000 000 / imprisonment for life, or both |
| Sale of a commercial quantity of a controlled plant or possession with intention to sell (includes cannabis - prescribed amount - 20 plants) | 33C(2) | $200 000 / 25 years, or both (for a serious drug offender or an aggravated offence: $500 000 / imprisonment for life, or both) |
| Sale of a controlled plant or possession with intention to sell (includes cannabis) | 33C(3) | $50 000 / 10 years, or both (for a serious drug offender or an aggravated offence: $75 000/ 15 years or both) |
| Sale or possession of a cannabis plant (only) with intention to sell | 33C(4) | As above, but must be prosecuted in Magistrates Court where maximum penalty is 5 years unless referred to District Court for sentence. |
| Supply or administer cannabis | ||
| Supply or administer cannabis, cannabis resin or cannabis oil to another person | 33I(2)(a) | $15 000 / 3 years, or both |
| Possession of cannabis, cannabis resin or cannabis oil with intention to supply or administer to another person | 33I(2)(b) | $15 000 / 3 years, or both |
| Cultivate Cannabis | ||
| Cultivate a cannabis plant by artificially enhanced cultivation | 33K(1)(ab) | $2 000 / 2 years, or both (for a serious drug offender or aggravated offence: $5 000 / 5 years, or both) |
| Cultivate more than prescribed number of cannabis plants (5 plants) | 33K(1)(b) | $2 000 / 2 years, or both (for a serious drug offender or an aggravated offence: $5 000 / 5 years, or both) |
| Cultivate a cannabis plant intended for supply or administration to another person | 33K(1)(c) | $2 000 / 2 years, or both (for a serious drug offender or an aggravated offence: $5 000 / 5 years, or both) |
| Cultivate not more than prescribed number of cannabis plants (5 plants) | 33K(2) | $2 000 / 2 years, or both
For a simple cannabis offence: (one cannabis plant) imprisonment must not be imposed – as defined in s 45A Expiable Offence |
| Cannabis - User Offences | ||
| Possession of cannabis, cannabis oil or cannabis resin | 33L(2)(a) | $2000
For a simple cannabis offence: (less than 100 grams cannabis, 20 grams of cannabis resin or 0 millilitres of cannabis oil as defined in s 45A) – Expiable Offence |
| Smoke or consume cannabis, cannabis oil, or cannabis resin | 33L(2)(b) | $2000
For a simple cannabis offence: (which excludes an offence committed in public place including in a motor vehicle, train, tram or any other vehicle, as defined in s 45A) – Expiable Offence |
| Possession of equipment for use in connection with the smoking, consumption, administration, or preparation for use of cannabis, cannabis oil or cannabis resin | 33L(2)(c) | $2000
For a simple cannabis offence: (any offence against this subsection, as defined in s 45A) – Expiable Offence |
Orders for forfeiture
As well as the power to fine and imprison, courts have the power under the Criminal Assets Confiscation Act 2005 (SA) to order the forfeiture of articles involved in the offences (for example, drugs or pipes), property acquired for the purpose of committing the offence (for example, land to grow cannabis commercially, equipment to irrigate, trucks to transport) or the proceeds or profits from the offence. If a serious drug offence has occurred (such as trade), or a person has become a prescribed drug offender, then any tainted property may be forfeited or restrained.
Assets may be forfeited if acquired with proceeds of offence
Assets may also be taken if they have been acquired from the proceeds of an offence. Where it is not possible to tell the extent of the contribution from the proceeds of offences, the whole of the tainted property can be forfeited. Where an innocent person has an interest in the same property the court may order that the person be compensated. Property (such as the family home or car) might not be forfeited if it would cause disproportionate hardship to innocent people. The court might also allow access to restrained funds for payment of reasonable legal costs.
Power to freeze assets
Even before a person is convicted of an offence, courts have the power to prevent any disposal or dealing in the property which is reasonably suspected of being liable to forfeiture, until the question of forfeiture is decided (a restraining order) [Criminal Assets Confiscation Act 2005 (SA) s 24].
Disposing of property the subject of an order a further offence
Any attempt to then dispose of the property is an offence which is punishable by a maximum fine of $20 000 or imprisonment for four years [Criminal Assets Confiscation Act 2005 (SA) s 33].
Prescribed drug offenders
The court has specific powers to seek forfeiture and restraining orders for all property of prescribed drug offenders, regardless of whether that property was acquired through the proceeds of an offence. A prescribed drug offender is a person who has been convicted of a serious drug offence (such as trafficking or manufacturing a commercial quantity of a controlled drug) where they have at least two other previous convictions for prescribed drug offences in the previous ten years [see Criminal Assets Confiscation Act 2005 (SA) s 6A].
Immediately on a person becoming a prescribed drug offender (i.e. upon conviction), a forfeiture order will be taken to have been made by the convicting court [see s 56A(1)]. This is referred to as a deemed forfeiture order. Upon conviction, all property owned by a prescribed drug offender will then be forfeited to the Crown, aside from protected or excluded property [see s 56A(2)]. This means that a prescribed drug offender's property does not have to be acquired through the proceeds of an offence to be forfeited or restrained [see definition of tainted property in section 3].
Justice Rehabilitation Fund
The proceeds of any confiscated assets forfeited to the Crown upon the conviction of a prescribed drug offender will be paid into the Justice Rehabilitation Fund. This Fund sits separately from the Victims of Crime Fund and enables the Attorney-General to fund programs and facilities for the benefit of offenders, victims and other persons, that will further crime prevention and rehabilitation strategies [see s 209A(5)]. In addition to any proceeds garnished from prescribed drug offenders, Parliament or the Attorney-General can also allow for additional funds to be paid into the Justice Rehabilitation Fund [see s 209A(3)].
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