Supplying Drugs to Children

– section 309.2 of the Commonwealth Criminal Code Act 1995
Child in Shadow
This charge is laid when a person allegedly supplies a controlled drug to a child.
Examples of Supplying Drugs to Children
  • A person sells a child methylamphetamine.
  • A person gives a child cannabis.
  • A person supplies a child with heroin.
Questions in cases like this
  • Has the accused supplied a substance to another person?
  • Is the other person a child?
  • Is the substance a controlled drug?
What are some of the possible defences to Supplying Drugs to Children?

Defences to this charge are ordinarily based on some element of the offence not being made out. These include:

  • The accused did not supply a substance to another person;
  • The person the accused supplied a substance to was not a child;
  • The substance was not a controlled drug.

Other defences include lack of capacity due to age,1 mental impairment,2 mistake of fact3 and duress.4

You should ring us and discuss your case if you have been charged. Deciding on whether or not to plead guilty has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

Higher CourtThis offence carries a maximum penalty of 15 years imprisonment or 3,000 penalty units (a $630,000.00 fine), or both.

The value of a penalty unit will automatically increase in line with the Consumer Price Index from July 2020, and every 3 years after.5

This is a very serious offence which is heard in the higher courts.

What is the legal definition of Supplying Drugs to Children?
  1. A person commits an offence if:
    1. the person supplies a substance to an individual; and
    2. the individual is a child; and
    3. the substance is a controlled drug.

    Penalty: Imprisonment for 15 years or 3,000 penalty units, or both.

  2. Strict liability applies to paragraph (1)(b).
  3. The fault element for paragraph (1)(c) is recklessness.
Legislation

The relevant legislative provision for this offence is section 309.2 of Criminal Code Act 1995 (Cth) (the Act).

Elements of the offence

For a person to be found guilty of this charge, the prosecution must prove the following elements beyond reasonable doubt:

  1. The accused supplied a substance to an individual;
  2. That individual was a child; and
  3. The substance was a controlled drug.

Element 1: The accused supplied a substance to an individual
The first element the prosecution must prove is that the accused supplied a substance to an individual.

‘Supplied’ is not defined in the Act and carries its ordinary meaning of ‘make available to someone’.7 In the context of this offence, this could mean giving, selling or providing a substance to another person.

Element 2: The individual was a child
The second element of this offence is that the person the accused supplied a substance to is a child.

A person is a child if they are under the age of 18.

‘Strict liability’ applies to this element of the offence.8 This means that it is irrelevant whether or not the accused was aware or suspected that the individual they were supplying the substances to was a child.9
 
Call Doogue + George
 
Element 3: The substance was a controlled drug
The final element of this offence is that the substance was a controlled drug.

A ‘controlled drug’ is a substance, other than a growing plant, that is:10

  1. Listed by a regulation as a controlled drug;11 or
  2. A drug analogue of a listed controlled drug;12 or
  3. Determined by the AFP Minister as a controlled drug under section 301.13 of the Act (which deals with emergency determinations of serious drugs).

The accused must be ‘reckless’ as to whether the substance is a controlled drug for this element to be satisfied.13 This will be the case if the accused is aware of a substantial risk that the substance is a controlled drug.14

“Can they prove the substance was a controlled drug?”
Other important resources
Media information

 



[1] Commonwealth Criminal Code Act 1995 (Cth) ss 7.1-7.2
[2] Commonwealth Criminal Code Act 1995 (Cth) s 7.3
[3] Commonwealth Criminal Code Act 1995 (Cth) s 9.2
[4] Commonwealth Criminal Code Act 1995 (Cth) s 10.2
[5] Australian Government, ‘Commonwealth Penalty Units Increase’, accessed 30/11/2018 <https://www.ato.gov.au/Business/Large-business/In-detail/Business-bulletins/Articles/Commonwealth-penalty-units-increase/>.
[6] Oxford English Dictionary Online, ‘Supply’, accessed 30/11/2018 <https://en.oxforddictionaries.com/definition/supply>.
[7] Family Law Act 1975 (Cth) s 4
[8] Commonwealth Criminal Code Act 1995 (Cth) s 309.2(1)(b)
[9] Commonwealth Criminal Code Act 1995 (Cth) s 6.1
[10] Commonwealth Criminal Code Act 1995 (Cth) s 301.1
[11] See Criminal Code Regulations 2002 (Cth) Schedule 3 for a list of controlled drugs.
[12] See Commonwealth Criminal Code Act 1995 (Cth) s 301.9 for the definition of ‘drug analogue’.
[13] Commonwealth Criminal Code Act 1995 (Cth) s 309.2(3)
[14] Commonwealth Criminal Code Act 1995 (Cth) s 5.4