Drug Charge Defence Lawyer in Tweed Heads

Defences to Drug Charges

One of the lesser-known features of anti-drug legislation in Queensland and New South Wales are the deeming provisions which operate to infer that a person is selling drugs on the basis that the person is found in possession of a certain quantity of drugs, not that they were caught selling or intending to sell the drugs.

So, what would otherwise be a possession offence effectively becomes the more serious offence of supplying drugs.  This presumption can be overcome if that person wishes to provide evidence to rebut it, but there are several matters that appear to be regularly missed by those choosing to do so.

Firstly, the prosecution case can rely not just on the drugs, but also on other matters they say show that sales had occurred, like a person’s explained wealth. Or that the drugs were found in similarly packaged quantities.  Or that there were firearms or other weapons located with the drugs.  Or simply that the person has told the police obvious lies when questioned about the drugs.

When faced with this type of charge it is imperative that meticulous preparation for trial occurs involving not only the proposed testimony of the person charges, but also addressing other items which the police are suggesting shows sales of drugs had or were to occur.

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It’s crucial that you seek legal advice if you’ve been accused/charged with a drug offence.

Contact Criminal Defence Attorney Michael McMillan for assistance and legal advice on (07) 5619 6860 or 0409 273 430.


Of course, the most serious of the drug offences in both States is those involving some commercial aspect to the offence, like trafficking for example.  But despite the Parliament in both States setting extremely high penalties for trafficking, the courts have shown (particularly recently in New South Wales after the decision in Regina v Parente [2017] NSWCCA 284 that being convicted of it doesn’t inevitably lead to imprisonment, provided the correct pre-sentence preparation has occurred.

Evidence which touches upon other matters found in the sentencing law of both States can, if presented persuasively, then lead a court to impose a penalty which doesn’t involve full time imprisonment.  Concepts like the prospects of re-offending, (the degree to which the offending is responsible for the offending), and the scope of rehabilitation can definitely assist in producing non-custodial outcomes now.  A good example a case I was involved in where that worked was the case of The Queen v Mason Fletcher where the extensive rehabilitation and low assessment of re-offending produced a suspended sentence, even though the trafficking period of 7 months was a long one, and it involved the distribution one of a drug in the most serious category.

Another is the case of The Queen v Jake John McManus where despite our client trafficking in a schedule 1 drug and possessing a criminal history with 2 prior entries for drug related activity, and starting his trafficking whilst on probation, his “remarkable” rehabilitation resulted in him receiving a wholly suspended period of imprisonment. 

Often linked to rehabilitation but overlooked by lawyers is the restrictive nature of pre-sentence residential rehabilitation or bail conditions.  This quasi imprisonment is easily equated with a type of pre-sentence custody and so deserving of recognition as such.  This was particularly appreciated in a case involving me in New South Wales called R v Stephen Gareth Hausfeld where I convinced the sentencing court to apply a discount for the very restrictive bail conditions (which were like house arrest), and the court agreed that those conditions represented a type of quasi imprisonment.  Unfortunately, this couldn’t keep the client out of custody, but it was obviously a powerful mitigating tool.

Simply drawing a factual yet understandable link between the unlawful drug activity and medical or psychological symptomology suffered by the client is another seldom explored matter.  I appeared in the case of Adam Clifford Romano (The Queen v. Adam Clifford Romano)in circumstances where the extreme and uncontrollable pain he suffered triggered his foray into illicit drug use, and this was clearly a matter which featured in a sentence not requiring him to serve any time in prison.

Sometimes it is very important to carefully analyse the basis for the police preferring a certain drug charge and focusing the court’s attention on that.  A case in which I was involved where that played a very significant role was the case of Patrick William Seabrook.  This was a Supreme Court sentence for trafficking drugs where the only admissible evidence of him committing that crime was his confession.  The court accepted that this meant that, although this was the most serious of the offences to which he pleaded guilty, he should receive a very large discount on sentence because he was confessing to offending the police had not arrested him for.

This information demonstrates that there certainly are paths that once identified can lead a court from imprisoning a person charged with even the most serious drug offending.  And this is just the tip of the iceberg.  If you have any questions about these types of matters, please don’t hesitate to contact me.

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Contact Michael McMillan immediately on (07) 5619 6860 or 0409 273 430. Alternatively, you can send an enquiry online to discuss your criminal matter.