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DRUGS, POISONS AND CONTROLLED SUBSTANCES ACT 1981 - SECT 70

Definitions

S. 70(1) amended by No. 101/1986 s. 55(1)(c).

    (1)     In this Part and Part VI, unless inconsistent with the context or subject-matter—

S. 70(1) def. of aggregated commercial quantity inserted by No. 61/2001 s. 4(1), amended by No. 52/2006 s. 8(1)–(4).

"aggregated commercial quantity", in relation to 2 or more drugs of dependence, means a quantity determined as follows—

        (a)     the quantity of each drug of dependence involved in the alleged offence is determined as a fraction of—

              (i)     in the case of a drug of dependence which is a narcotic plant, the commercial quantity specified in column 2 of Part 2 of Schedule Eleven in respect of that drug of dependence; and

              (ii)     in relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven—

    (A)     if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 2A of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or

    (B)     in any other case, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence; and

        (b)     the fractions determined under paragraph (a) are added together; and

        (c)     the quantity is an aggregated commercial quantity if the total of those fractions when added together is equal to or greater than the number "1";

Example 1

Drug of dependence not contained in or mixed with other substance

Jack is in possession of 200 grams of heroin, 80 grams of amphetamine and 800 grams of tetrahydrocannabinol. The individual commercial quantities for each of those drugs is 250 grams, 100 grams and 1 kilogram respectively (as set out in column 2 of Part 3 of Schedule Eleven), so each of these quantities is not individually a commercial quantity for trafficking.

To aggregate the individual quantities, determine the quantities involved as fractions of the specified commercial quantities: 200 / 250  (heroin), 80 / 100  (amphetamine)and 800 / 1000 (tetrahydrocannabinol) ie 4 / 5 plus 4 / 5 plus 4 / 5 . The total of the fractions when added together is 12 / 5 or 2·4 which is a number greater than 1. This is a quantity which is not less than an aggregated commercial quantity of 2 or more drugs of dependence.

Example 2

Drug of dependence not contained in or mixed with other substance Jill is in possession of 80 cannabis plants and 800 grams of tetrahydrocannabinol. The individual commercial quantities for each of those drugs is 100 plants and 1 kilogram respectively (as set out in column 2 of Part 2 of Schedule Eleven and column 2 of Part 3 of Schedule Eleven), so each of these quantities is not individually a commercial quantity for trafficking.

To aggregate the individual quantities, determine the quantities involved as fractions of the specified commercial quantities: 80 / 100  (cannabis plants) and 800 / 1000  (tetrahydrocannabinol) ie 8 / 10 plus 8 / 10 . The total of the fractions when added together is 16 / 10 or 1·6 which is a number greater than 1. This is a quantity which is not less than an aggregated commercial quantity of 2 or more drugs of dependence.

Example 3

Drug of dependence contained in or mixed with other substance

Fred is in possession of 400 grams of a substance containing 240 grams of heroin, 400 grams of a substance containing 200 grams of amphetamine and 8 kilograms of a substance containing 900 grams of tetrahydracannabinol. The individual commercial quantities for a mixture of one of these drugs and another substance (as set out in column 2A of Part 3 of Schedule Eleven), comprise 500 grams for heroin, 500 grams for amphetamine, and 10 kilograms for tetrahydracannabinol, so each of these quantities is not individually a commercial quantity for trafficking.

To aggregate the individual quantities, determine the quantities involved as fractions of the specified commercial quantities 400 / 500 (quantity of mixture of substance and heroin), 400 / 500 (quantity of mixture of substance and amphetamine), 800 / 1000 (quantity of mixture of substance and tetrahydrocannabinol) i.e.  4 / 5  plus 4 / 5 plus 4 / 5 . The total of these fractions is 12 / 5 or 2·4 which is a number greater than 1. This is a quantity which is not less than an aggregated commercial quantity of 2 or more drugs of dependence.

Note

For narcotic plants, quantities are to be calculated on the quantity specified for a drug of dependence in column 2 of Part 2 of Schedule Eleven.

Quantities of drugs of dependence contained in or mixed with another substance are to be calculated on the quantities specified in column 2A of Part 3 of Schedule Eleven.

In the case of a drug of dependence specified in column 1 of Part 3 of Schedule Eleven, quantities are to be calculated either on the quantity specified for the drug of dependence in column 2 of Part 3 of Schedule Eleven (if that drug is not contained in or mixed with another substance) or on the quantity specified for the drug of dependence in column 2A of Part 3 of Schedule Eleven (if that drug is contained in or mixed with another substance).
If a quantity is calculated on a quantity specified in column 2 of Part 3 of Schedule Eleven in respect of a drug of dependence, any other substance contained in or mixed with that drug of dependence is not to be included in the calculation.

S. 70(1) def. of aggregated large commercial quantity inserted by No. 61/2001 s. 4(1), amended by No. 52/2006 s. 8(5)–(7).

"aggregated large commercial quantity", in relation to 2 or more drugs of dependence, means a quantity determined as follows—

        (a)     the quantity of each drug of dependence involved in the alleged offence is determined as a fraction of—

              (i)     in the case of a drug of dependence which is a narcotic plant, the large commercial quantity specified in column 1A of Part 2 of Schedule Eleven in respect of that drug of dependence; and

              (ii)     in relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven—

    (A)     if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 1B of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or

    (B)     in any other case, means the quantity that is specified in column 1A of that Part of that Schedule opposite to the name of that drug of dependence; and

        (b)     the fractions determined under paragraph (a) are added together; and

        (c)     the quantity is an aggregated large commercial quantity if the total of those fractions when added together is equal to or greater than the number "1";

Examples

Example 1

Drug of dependence contained in or mixed with other substance

Bill is in possession of 800 grams of a substance containing 250 grams of amphetamine, 600 grams of a substance containing 200 grams of heroin, 800 grams of a substance containing 100 grams of methylamphetamine. The individual large commercial quantities for a mixture of one of these drugs and another substance (as set out in column 1B of Part 3 of Schedule Eleven), comprise 1 kilogram for amphetamine, 1 kilogram for heroin and 1 kilogram for methylamphetamine so each of these quantities is not individually a large commercial quantity for trafficking.

To aggregate the individual quantities, determine the quantities involved as fractions of the specified large commercial quantities 800 / 1000 (quantity of mixture of substance and amphetamine), 600 / 1000 (quantity of mixture of substances and heroin), 800 / 1000 (quantity of mixture of substance and methylamphetamine), i.e. 4 / 5 plus 3 / 5 plus 4 / 5 . The total of these fractions is 11 / 5 or 2·2 which is a number greater than 1. This is a quantity which is not less than an aggregated large commercial quantity of 2 or more drugs of dependence.

Example 2

Drug of dependence not contained in or mixed with other substance

Fredrica is in possession of 150 grams of heroin, 300 grams of amphetamine, and 450 grams of cocaine. The individual large commercial quantities for each of those drugs (as set out in Column 1A of Part 3 of Schedule Eleven), comprise 750 grams for heroin, 750 grams for amphetamine and 750 grams for cocaine so each of these quantities is not individually a large commercial quantity for trafficking.

To aggregate the individual quantities, determine the quantities involved as fractions of the specified large commercial quantities 150 / 750 (heroin), 300 / 750 (amphetamine), 450 / 750 (cocaine), i.e. 1 / 5 plus 2 / 5 plus 3 / 5 . The total of these fractions is 6 / 5 or 1·2 which is a number greater than 1. This is a quantity which is not less than an aggregated large commercial quantity of 2 or more drugs of dependence.

Note

For narcotic plants, quantities are to be calculated on the quantity specified for a drug of dependence in column 1A of Part 2 of Schedule Eleven.

Quantities of drugs of dependence contained in or mixed with another substance are to be calculated on the quantities specified in column 1B of Part 3 of Schedule Eleven.

In the case of a drug of dependence specified in column 1 of Part 3 of Schedule Eleven, quantities are to be calculated either on the quantity specified for the drug of dependence in column 1A of Part 3 of Schedule Eleven (if that drug is not contained in or mixed with another substance) or on the quantity specified for the drug of dependence in column 1B of Part 3 of Schedule Eleven (if that drug is contained in or mixed with another substance). If a quantity is calculated on a quantity specified in column 1A of Part 3 of Schedule Eleven in respect of a drug of dependence, any other substance contained in or mixed with that drug of dependence is not to be included in the calculation.

S. 70(1) def. of automatic forfeiture quantity inserted by No. 63/2003 s. 45.

"automatic forfeiture quantity", in relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven, means the quantity of that drug, including any other substance in which it is contained or with which it is mixed, that is specified in column 2B of that Part of that Schedule opposite to the name of that drug of dependence;

Note

see the Confiscation Act 1997 ;

S. 70(1) def. of cannabis amended by No. 101/1986 s. 58(1)(b)(i), substituted by No. 48/1997 s. 37(a).

cannabis means any fresh or dried parts of a plant of the genus Cannabis L;

S. 70(1) def. of  child inserted by No. 48/1997 s. 37(a).

"child" means a person under 18 years of age;

S. 70(1) def. of commercial quantity substituted by Nos 48/1997 s. 37(b), 61/2001 s. 4(2).

"commercial quantity"—

        (a)     in relation to a drug of dependence the name of which is specified in column 1 of Part 1 of Schedule Eleven, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;

        (b)     in relation to a drug of dependence the name of which is specified in column 1 of Part 2 of Schedule Eleven, means the quantity, or the number of plants, that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;

        (c)     in relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven—

              (i)     if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 2A of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or

              (ii)     in any other case, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;

        (d)     in relation to 2 or more drugs of dependence, means an aggregated commercial quantity of those drugs;

S. 70(1) def. of cultivate inserted by No. 61/2001 s. 4(1), amended by No. 52/2006 s. 8(8).

"cultivate", in relation to a narcotic plant includes—

        (a)     sow a seed of a narcotic plant; or

        (b)     plant, grow, tend, nurture or harvest a narcotic plant; or

        (c)     graft, divide or transplant a narcotic plant;

S. 70(1) def. of large commercial quantity inserted by No. 61/2001 s. 4(1).

large commercial quantity

        (a)     in relation to a drug of dependence the name of which is specified in column 1 of Part 2 of Schedule Eleven, means the quantity, or the number of plants, that is specified in column 1A of that Part of that Schedule opposite to the name of that drug of dependence;

        (b)     in relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven—

              (i)     if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 1B of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or

              (ii)     in any other case, means the quantity that is specified in column 1A of that Part of that Schedule opposite to the name of that drug of dependence;

        (c)     in relation to 2 or more drugs of dependence, means an aggregated large commercial quantity of those drugs;

S. 70(1) def. of narcotic plant amended by Nos 101/1986 s. 58(1)(b)(ii), 52/2006 s. 8(9).

"narcotic plant" means any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven and includes a cutting of such a plant, whether or not the cutting has roots;

S. 70(1) def. of public place inserted by No. 2/2016 s. 4.

"public place" has the same meaning as it has in section 3 of the Summary Offences Act   1966 ;

S. 70(1) def. of school inserted by No. 2/2016 s. 4.

"school" has the same meaning as it has in section 1.1.3 of the Education and Training Reform Act 2006 ;

S. 70(1) def. of small quantity amended by Nos 101/1986 s. 58(1)(b)(iii), 48/1997 s. 37(c).

"small quantity"—

        (a)     in relation to any fresh or dried parts of a plant of the genus Cannabis L, means the quantity that is specified in column 4 of Part 2 of Schedule Eleven opposite to the name Cannabis L specified in column 1 of that part of that Schedule; and

        (b)     in relation to any drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven, means the quantity of that drug, including any other substance in which it is contained or with which it is mixed, that is specified in column 4 of that Part of that Schedule opposite to the name of that drug of dependence;

"traffick" in relation to a drug of dependence includes—

        (a)     prepare a drug of dependence for trafficking;

        (b)     manufacture a drug of dependence; or

        (c)     sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence;

S. 70(1) def. of traffickable quantity substituted by No. 48/1997 s. 37(d), amended by No. 52/2006 s. 8(10).

"traffickable quantity", in relation to a drug of dependence—

        (a)     the name of which is specified in column 1 of Part 1 of Schedule Eleven, means the quantity that is specified in column 3 of that Part of that Schedule opposite to the name of that drug of dependence;

        (b)     the name of which is specified in column 1 of Part 2 of Schedule Eleven, means the quantity, or the number of plants, that is specified in column 3 of that Part of that Schedule opposite to the name of that drug of dependence;

        (c)     the name of which is specified in column 1 of Part 3 of Schedule Eleven—

              (i)     if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 3 of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or

              (ii)     in any other case, means the quantity that is specified in column 3A of that Part of that Schedule opposite to the name of that drug of dependence;

"use" in relation to a drug of dependence means—

        (a)     smoke a drug of dependence;

        (b)     inhale the fumes caused by heating or burning a drug of dependence; or

        (c)     introduce a drug of dependence into the body of a person.

S. 70(2) amended by No. 18/2000 s. 105(c).

    (2)     The provisions of section 4(2) and (3) and the interpretations of "manufacture", sell and supply in section 4(1) do not apply to this Part.

S. 71 substituted by No. 10002 s. 7(1), amended by Nos 56/1989 s. 286(Sch. 2 item 9), 48/1997 ss 38(1)
(2)(a)(b), 41(1)(a)(b), substituted by No. 61/2001 s. 5, amended by No. 52/2014 s. 18 (ILA s. 39B(1)).



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