Subdiv 4Sale of equipment etc

Subdivision 4—Sale of equipment etc 33D—Sale of equipment (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, 33DA—Sale of instructions (a) sells a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant; or (b) has possession of a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant, intending to sell it, 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) 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, 33G—Sale, supply or administration of controlled drug in school zone (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, (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. 33GA—Sale of equipment to child for use in connection with consumption of controlled drugs (a) sells a piece of equipment to a child 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 to a child for such use, 33GB—Sale of instructions to a child (a) sells to a child a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant; or (b) has possession of a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant, intending to sell it to a child, 33H—Procuring child to commit offence A person who procures a child to commit an offence against this Part is guilty of an offence. Division 4—Other offences 33I—Supply or administration of controlled drug (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, (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, Maximum penalty: $15 000 or imprisonment for 3 years, or both. 33J—Manufacture of controlled drugs (1) A person who manufactures a controlled drug is guilty of an offence. (ii) in any other case—$30 000 or imprisonment for 7 years, or both; (2) A person who has possession of— (a) a controlled precursor; or (b) any prescribed equipment, intending to use it to manufacture a controlled drug is guilty of an offence. 33K—Cultivation of controlled plants (a) cultivates a controlled plant (other than a cannabis plant); or (ab) cultivates a cannabis plant by artificially enhanced cultivation; 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, (i) if the offender is a serious drug offender—$5 000 or imprisonment for 5 years, or both; or (ii) in any other case—$2 000 or imprisonment for 2 years, or both; (b) for an aggravated offence—$5 000 or imprisonment for 5 years, or both. (2) A person who cultivates not more than the prescribed number of cannabis plants is guilty of an offence. Maximum penalty: $2 000 or imprisonment for 2 years, or both. (3) A court sentencing a person for an offence against subsection (2) that is a simple cannabis offence (within the meaning of section 45A) must not impose any sentence of imprisonment in relation to the offence. 33L—Possession or consumption of controlled drug etc (a) has possession of a controlled drug (other than an interim controlled drug, 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 an interim controlled drug, 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 an interim controlled drug, cannabis, cannabis resin or cannabis oil), or the preparation of such a drug for smoking, consumption or administration, Maximum penalty: $2 000 or imprisonment for 2 years, or both. (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, Maximum penalty: $2 000. 33LA—Possession or supply of prescribed equipment A person who, without reasonable excuse (proof of which lies on the person)— (a) has possession of any prescribed equipment; or (b) supplies to another person any prescribed equipment; or (c) has possession of any prescribed equipment intending to supply it to another person, 33LAB—Possession or supply of instructions (a) has possession of a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant; or (b) supplies to another person a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant; or (c) has possession of a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant intending to supply it to another person, 33LB—Possession or supply of prescribed quantity of controlled precursor (a) has possession of a prescribed quantity of a controlled precursor; or (b) supplies to another person a prescribed quantity of a controlled precursor; or (c) has possession of a prescribed quantity of a controlled precursor intending to supply it to another person, (2) A person who, without reasonable excuse (proof of which lies on the person)— (a) — (i) has possession of a prescribed quantity of a controlled precursor; or (ii) supplies to another person a prescribed quantity of a controlled precursor; or (iii) has possession of a prescribed quantity of a controlled precursor intending to supply it to another person; and (b) — (i) has possession of a prescribed quantity of another kind of controlled precursor or any prescribed equipment; or (ii) supplies to another person a prescribed quantity of another kind of controlled precursor or any prescribed equipment; or (iii) has possession of a prescribed quantity of another kind of controlled precursor or any prescribed equipment intending to supply it to another person, prescribed quantity of a controlled precursor means— (a) in relation to a controlled precursor contained in a mixture— (i) a quantity of the precursor that equals or exceeds the amount prescribed for the purposes of this section for the precursor in its pure form; or (ii) a quantity of the mixture that equals or exceeds the amount prescribed for the purposes of this section for a mixture containing the precursor; or (b) in relation to a controlled precursor that is not contained in a mixture— (i) if the regulations prescribe an amount for the purposes of this section for the precursor in its pure form—a quantity of the precursor that equals or exceeds the amount so prescribed; or (ii) if the regulations do not prescribe an amount for the purposes of this section for the precursor in its pure form—a quantity of the precursor that equals or exceeds the amount prescribed for the purposes of this section for any mixture containing the precursor. Division 4A—Offences relating to controlled drug alternatives 33LC—Interpretation (1) In this Division— manufacture, in relation to a substance, means— (a) undertake any process by which the substance is extracted, produced or refined; or (b) take part in the process of manufacture of the substance. (2) For the purposes of this Division, a person takes part in the process of manufacture of a substance if the person directs, takes or participates in any step, or causes any step to be taken, in the process of manufacture of the substance. (3) For the purposes of this Division, a step in the process of manufacture of a substance includes, without limitation, any of the following when done for the purpose of manufacture of the substance: (a) acquiring equipment, substances or materials; (b) storing equipment, substances or materials; (c) carrying, transporting, loading or unloading equipment, substances or materials; (d) guarding or concealing equipment, substances or materials; (e) providing or arranging finance (including finance for the acquisition of equipment, substances or materials); (4) A court may be satisfied that a person has committed an offence against this Division in relation to a substance despite any usage instruction concerning the substance (given in any manner, way, medium or form) that indicates that it is not a controlled drug or a legal alternative to a controlled drug or that it is not intended for human consumption. 33LD—Intentional manufacture of controlled drug alternative A person who manufactures a substance intending that the substance— (a) will have pharmacological effects similar to those of a controlled drug; or (b) will be a legal alternative to a controlled drug, 33LE—Promoting controlled drug alternative (1) A person who promotes a substance— (a) as having pharmacological effects similar to those of a controlled drug; or (b) as being a legal alternative to a controlled drug; or (c) in a way that is intended, or likely, to cause a person to believe that the substance— (i) is a controlled drug; or (ii) has pharmacological effects similar to those of a controlled drug; or (iii) is a legal alternative to a controlled drug, (2) In proceedings for an offence against subsection (1), the prosecution need not prove that the defendant promoted the substance— (a) as having pharmacological effects similar to those of a particular controlled drug; or (b) as being a legal alternative to a particular controlled drug; or (c) in a way that is intended, or likely, to cause a person to believe that the substance— (i) is a particular controlled drug; or (ii) has pharmacological effects similar to those of a particular controlled drug; or (iii) is a legal alternative to a particular controlled drug. (3) For the purposes of subsection (1), a person promotes a substance if the person takes any action that is designed to publicise or promote the substance, whether visual or auditory means are employed and whether the substance is directly depicted or referred to or symbolism of some kind is employed, and includes taking any other action of a kind prescribed by regulation for the purposes of this subsection. 33LF—Manufacturing, packaging, selling or supplying substance promoted as controlled drug alternative (1) If a police officer reasonably suspects that a person intends to manufacture, package, sell or supply a substance that is being, or is to be, promoted in a manner prohibited under section 33LE, the officer may give the person a notice (containing any particulars prescribed by the regulations) warning the person that if he or she manufactures, packages, sells or supplies the substance he or she will be guilty of an offence. (2) A notice given to a person under subsection (1) may be revoked at any time by further notice given to the person by a police officer (and must be so revoked if a police officer is satisfied that the substance to which the notices relates is not being, and is not to be, promoted in a manner prohibited under section 33LE). (3) A person who has been given a notice under subsection (1) and who subsequently manufactures, sells or supplies the substance specified in the notice is guilty of an offence. (4) A notice to be given to a person under this section— (a) in the case of a notice under subsection (1)—must be served on the person personally; or (b) in the case of a notice under subsection (2)—may be served personally or by post. 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) If 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. 33OA—Basis for determining quantity of controlled substance (1) If, for the purposes of the definition of trafficable quantity, commercial quantity or large commercial quantity in section 4(1) or the definition of prescribed quantity in section 33LB, the regulations prescribe more than 1 of the following in relation to a particular controlled drug or controlled precursor: (a) an amount for the drug or precursor in its pure form; (b) an amount for a mixture containing the drug or precursor; (c) a number of discrete dosage units for a mixture containing the drug or precursor, then, in proceedings for an offence against this Part involving that drug or precursor contained in a mixture, the question of whether or not the quantity of the drug or precursor the subject of the proceedings was a trafficable quantity, commercial quantity, large commercial quantity or prescribed quantity will be determined by reference to— (d) if the charge alleges a particular quantity of the drug or precursor in its pure form—the prescribed amount for the drug or precursor in its pure form; or (e) if the charge alleges a particular quantity of the mixture containing the drug or precursor—the prescribed amount for a mixture containing the drug or precursor; or (f) if the charge alleges a particular number of discrete dosage units of the mixture containing the drug or precursor—the prescribed number of discrete dosage units for a mixture containing the drug or precursor. (2) If, for the purposes of the definition of trafficable quantity, commercial quantity or large commercial quantity in section 4(1), the regulations prescribe both a number of a particular controlled plant and a weight of that plant, then, in proceedings for an offence against this Part involving that plant, the question of whether or not the quantity of the plant the subject of the proceedings was a trafficable quantity, commercial quantity or large commercial quantity will be determined by reference to— (a) if the charge alleges a particular number of the plant—the prescribed number for the plant; or (b) if the charge alleges a particular weight of the plant—the prescribed weight for the plant. (3) For the purposes of the definition of trafficable quantity, commercial quantity or large commercial quantity in section 4(1) or the definition of prescribed quantity in section 33LB, a controlled drug or controlled precursor will be taken to be contained in a mixture unless it is proved, beyond a reasonable doubt, that the drug or precursor was not contained in a mixture or was in its pure form. 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 or quantity of the controlled substance. (3) In this section, a reference to an offence against this Part relating to a controlled substance includes an offence of attempting to commit that offence in accordance with section 270A of the Criminal Law Consolidation Act 1935. 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, 33B or 33LD; or (b) in circumstances prescribed by regulation. 33T—Power of court to prohibit certain activities (1) A court may, on the application of a police officer, make an order under this section in relation to a person if satisfied that— (a) the person has been convicted of 1 or more offences against this Part committed in the course of carrying on a business; and (b) the making of the order is reasonably necessary to ensure that the person does not engage in further conduct constituting an offence against this Part. (2) An order under this section may prohibit a person from— (a) engaging in specified conduct; or (b) carrying on a specified business or a specified kind of business, at specified premises or in specified circumstances. (3) A court making an order under this section may make any ancillary orders that the court considers appropriate. (4) A court may, by subsequent order, vary or revoke an order made by the court under this section. Division 6—Procedure in relation to simple possession offences 34—Application of Division (1) This Division does not apply in relation to— (a) a child who is alleged to have committed a simple possession offence; or (b) a person who is alleged to have committed a simple possession offence and is charged with a serious drug offence arising out of the same circumstances; or (c) a person who is alleged to have committed a simple possession offence but who has, in the 4 years preceding the date of the alleged simple possession offence, been referred to a nominated assessment service under this Division on 2 or more occasions (with each referral being in respect of a separate alleged simple possession offence). serious drug offence means an offence against Division 2 (other than Subdivision 4), Division 3, Division 4 (other than section 33I(2), 33K or 33L) or Division 4A of this Part. 36—Referral for assessment (1) If a person is alleged to have committed a simple possession offence, a police officer must refer the person to a nominated assessment service and give the person a notice that sets out particulars of the date, place and time at which the person must attend the service. (2) A copy of the referral notice must be forwarded to the nominated assessment service. (3) A referral under this section operates as a stay of proceedings (if any) for the alleged offence. 37—Assessment of referred person (1) On a person being referred to an assessment service under this Division, the service must proceed to carry out and complete its assessment as expeditiously as reasonably practicable. (2) For the purposes of carrying out the assessment, the service may, by notice in writing given personally or by post, require the person to— (a) give written consent to— (i) the release of the person's medical and other treatment records to the service and to any drug treatment service that is to provide treatment to the person pursuant to an undertaking under this Division; (ii) the release to the service of— (A) records held by or on behalf of an assessment service or any agency or instrumentality of the Crown relating to previous assessments of, or undertakings entered into by, the person under this Division; and (B) the person's criminal record (ie, record of any convictions recorded against the person); or (b) attend the service for such further number of interviews as the service thinks fit; or (c) submit to an examination, by the service or by any other person, to determine whether the person is experiencing physical, psychological or social problems connected with the misuse of drugs and, if so, the treatment (if any) appropriate for the person. (3) The assessment service must, by notice in writing to the person given personally or by post, terminate the person's referral to the service— (a) if the person fails, without reasonable excuse, to attend the service in accordance with the referral notice or with any other notice requiring the person to attend; or (b) if at any time during the assessment it becomes apparent to the service that— (i) it would not in the circumstances be appropriate to require the person to enter into an undertaking under this Division; or (ii) the person does not admit to the allegation (but the service is not required to ascertain this); or (iii) the person does not want the service to deal with the matter, and may, in the same manner, terminate the referral— (c) if the person hinders, or does not cooperate with, the service in carrying out the assessment; or (d) if the person, without reasonable excuse, refuses or fails to comply with a requirement under this Division to give written consent to the release of records or to submit to an examination; or (e) if the person refuses to comply with a requirement to enter into an undertaking under this Division or, without reasonable excuse, contravenes or fails to comply with an undertaking entered into under this Division. (4) A notice under subsection (3) must set out a short statement of the service's reasons for the termination. (5) The service must give a copy of the notice of termination to the Commissioner of Police. 38—Undertakings (1) An assessment service may, on the completion of an assessment under this Division, require the person alleged to have committed the offence to enter into a written undertaking relating to— (a) the treatment that the person will undertake; or (b) participation by the person in a programme of an educative, preventive or rehabilitative nature; or (c) any other matters that will, in the opinion of the service, assist the person to overcome any personal problems that may tend to lead, or that may have led, to the misuse of drugs. (2) The undertaking can only require the person to undergo treatment with a treatment service. (3) If the person enters into the undertaking— (a) the person must be given a copy of the undertaking; and (b) any complaint laid against the person for the alleged simple possession offence must be withdrawn; and (c) the person must, if remanded in custody for the alleged simple possession offence but not otherwise subject to detention, be released from detention or, if on bail for the offence, the bail agreement must be discharged. (4) The undertaking will be effective for a period, not exceeding 6 months, determined by the service and specified in the undertaking. (5) The service may, at the request or with the consent of the person bound by the undertaking, vary the terms of the undertaking, but not so that the total period of the undertaking exceeds 6 months. (6) The service must notify the Commissioner of Police that the person has entered into an undertaking, of any extension to the period of the undertaking and, if it occurs, of the expiry of the undertaking. 39—Release from custody for the purposes of assessment or undertaking If a person who is in custody has been given a notice under this Division requiring the person to attend an assessment service or any other place, or has entered into an undertaking under this Division requiring the person to attend at any place, the manager of the place in which the person is being detained must cause the person to be brought to the service or other place as required by the notice or undertaking. 40—Prosecution of simple possession offences (1) A prosecution for a simple possession offence alleged to have been committed by a person cannot proceed unless the person has been referred to an assessment service under this Division and the referral has been terminated by the service. (2) The fact that a person alleged to have committed a simple possession offence participates in an assessment or enters into an undertaking under this Division does not constitute an admission of guilt, and will not be regarded as evidence tending to establish guilt, in relation to the alleged offence. (3) If the referral of a person is terminated under this Division, evidence— (a) of anything said or done by the person in the course of being assessed or carrying out an undertaking; or (b) of the reasons for the termination, is not admissible in any proceedings against the person for the alleged offence. (4) On the expiry of an undertaking under this Division, the person who entered into it is immune from prosecution for the alleged offence to which the undertaking related. 40A—Confidentiality A person who is, or has been, engaged in duties related to the administration of this Division must not disclose information relating to a person referred for assessment under this Division, being information obtained in the course of those duties, unless the disclosure is made— (a) in the administration of this Division; or (b) as authorised or required by law; or (c) with the consent of the person to whom the information relates.