Offences Involving Ecstasy

In the ACT, it is an offence to possess, manufacture, sell, supply, traffic or administer ecstasy. This section covers each of these offences and their maximum penalties, which range from fines of 50 penalty units to life imprisonment, depending on the offence.

Ecstasy itself is a street name for 3,4-methylenedioxymethylamphetamine, or MDMA. MDMA is also commonly referred to as pingers, eckies, E, X, XTC, Molly, pills, rolls, wigs, Adam, bean, vitamin e and vitamin x.

Administering Ecstasy

In the ACT, it is an offence to administer ecstasy to another person, yourself or an animal without being authorised to do so. The maximum penalty for this offence is a fine of 100 penalty units and/or 1 year imprisonment.

The Offence Of Administering Ecstasy

The offence of administering ecstasy is contained in Section 37 of the Medicines, Poisons and Therapeutic Goods Act 2008. It prohibits the administration of a declared substance to another person, yourself; or an animal unless you are authorised to do so.

Conviction for this offence can result in a fine of up to 100 penalty units, 1 year imprisonment or both.

Ecstasy is classified by the Therapeutic Goods Administration (TGA) as a “prohibited substance”, being a declared substance under Schedule 9 of the Federal Poisons Standard. Substances classified as “prohibited substances” are considered declared substances as they are subject to abuse.

What The Police Must Prove

The prosecution must prove each of the following matters beyond reasonable doubt:

• that the substance in question is ecstasy; and
• that you administered the ecstasy to either:
  • another person; or
  • yourself; or
  • an animal; and
• that you were not authorised to do so.

Which Court Will Hear Your Matter?

This matter is a summary matter and will be dealt with in the ACT Magistrates Court.

Possessing Ecstasy

In the ACT it is an offence to be in possession of ecstasy. The maximum penalty is a fine of 50 penalty units and/or 2 years imprisonment.

The Offence Of Possessing Ecstasy

The offence of possessing ecstasy is contained in section 171 of the Drugs of Dependence Act 1989 which states that a person shall not possess a prohibited substance. Ecstasy is defined as a prohibited substance under section 5 of the Drugs of Dependence Regulation 2009.

The maximum penalty for this offence is a fine of 50 penalty units, imprisonment for 2 years or both.

What Is “Possession”?

The prosecution must prove the following beyond reasonable doubt:

• the substance was in your custody or control; and
• you knew that you had custody or control of the substance; and
• the substance was ecstasy.

All of these things need to be proved beyond reasonable doubt in order for you to be found guilty of possessing ecstasy.

In order to have custody you must have immediate physical possession of the ecstasy. For example, you have ecstasy in your pocket.

In order to have control you must have a right to do something with the ecstasy. For example, you are at a party and you take the ecstasy out of your pocket, place it on the table and walk out onto the balcony to join your friends. At this point you have lost custody of the ecstasy, however you still have control as you have the right to keep, consume or share the ecstasy.

In each of these circumstances you must also have knowledge that you had custody or control of the ecstasy. For example, if a friend placed the ecstasy in your bag without you realising, you may have custody of it but you do not have the requisite knowledge to be guilty of the offence.

What Actions Might Constitute Possession?

Because of the broad interpretation of “possession”, you can possess something even if you only hold it momentarily. For example, if you are at a music festival with some friends passing a bag of ecstasy pills around and the police arrive, you are in possession of the ecstasy even if it has only just been passed to you.

Examples of what would NOT constitute possession:

• You own an apartment that is rented out. The tenants have been found to have ecstasy at the apartment but you were unaware until you were contacted by police. This is not possession because although you own the apartment, you do not own all of the things in it and do not have any right to use and/or sell the contents.
• You live in a share house with 3 other housemates. Police find ecstasy in the living room which is a shared space that all 4 of you use regularly. Unless someone makes a statement to police admitting that the drugs are theirs, or implicating someone else, it is likely that no one will be charged because police cannot determine which one of you had custody or control of the ecstasy.
• You host a party at your house and you know some guests had left a bag of ecstasy pills on your outdoor table. You called them the next day and asked them to collect it but before they get to your house, the police arrive. You tell police that you were waiting for someone to collect it. In this case you have knowledge that the ecstasy is there  but you have not laid claim to it and have not done anything to exercise control over it.

What The Police Must Prove

To convict you of possessing ecstasy, the prosecution must prove each of the following matters beyond reasonable doubt:

• that you had possession of the substance; and
• that substance was ecstasy.

However, if you possessed ecstasy for the purpose of selling or supplying it to someone else, you will likely be charged with Sale or Supply of Ecstasy

Possible Defences For Possessing Ecstasy

The common ways to defend this charge are:

• to maintain your innocence if you did not commit the act; or
• to argue that you did not have possession of the substance; for example, that you had custody but did not know you had custody of it, as in the example above of the ecstasy placed in your bag without your knowledge; or
• to argue that the substance was not ecstasy.

Which Court Will Hear My Matter?

This is a summary matter and will be dealt with in the ACT Magistrates Court.

Selling Or Supplying Ecstasy

It is an offence in the ACT to sell or supply ecstasy. The maximum penalty is a fine of 500 penalty units and/or 5 years imprisonment.

The Offences Of Selling Or Supplying Ecstasy

The offence of sale or supply of ecstasy is contained in Section 164 of the Drugs of Dependence Act 1989 which states that a person commits an offence if they:

• sell or supply a prohibited substance to any person; or
• participate in the sale or supply of a prohibited substance to any person; or
• possess a prohibited substance for the purpose of sale or supply to any person.

Ecstasy is defined as a prohibited substance under Section 5 of the Drugs of Dependence Regulation 2009.

This offence carries a maximum penalty of a fine of 500 penalty units, imprisonment for 5 years or both.

What Is Sale Or Supply?

The ordinary meaning of the word ‘sell’ is extended in the dictionary contained in the Drugs of Dependence Act 1989 to include:

• offer or expose for sale.

The ordinary meaning of the word ‘supply’ is extended in the dictionary contained in the Drugs of Dependence Act 1989 to include:

• offer to supply but does not include administer.

What Actions Might Constitute Selling Or Supplying?

Examples of selling or supplying ecstasy include:

• You meet up with your supplier before a night out to buy some ecstasy for you and your friends. When you get to the nightclub you find your friends on the dance floor and hand out ecstasy pills to each of them.
• You are at a house party and take some ecstasy. Your friend’s girlfriend approaches you, asks if you have more and offers to pay you cash next time she sees you. You tell her you need the money tomorrow and give her an ecstasy pill.
• You hang around 200m from the entrance of a music festival where you make a nice profit selling ecstasy pills to festival goers.

What The Prosecution Must Prove

To convict you of selling or supplying ecstasy, the prosecution must prove each of the following matters beyond reasonable doubt:

• that you sold or supplied a substance; and
• that substance was ecstasy.

Which Court Will Hear My Matter?

These matters may be dealt with in either the ACT Magistrates Court or the ACT Supreme Court, depending what the prosecution and/or you elect to do.

Trafficking Ecstasy

It is an offence in the ACT to traffic ecstasy. The maximum penalty ranges from fines of 1000 penalty units to imprisonment for life, depending on the quantity of ecstasy.

The Offence Of Trafficking In Ecstasy

Trafficking of ecstasy is divided into a number of offences based on the quantity of ecstasy trafficked. These offences are contained in Section 603 of the Code which states that a person commits an offence if they:

• traffic in ecstasy (contrary to Section 603(7) of the Code).
• traffic in a commercial quantity of ecstasy (contrary to Section 603(3) of the Code).
• traffic in a large commercial quantity of ecstasy (contrary to Section 603(1) of the Code).

The penalties for this offence range from a fine of 1000 penalty units to life imprisonment, depending on the quantity of ecstasy trafficked. The specific penalties are set out below.

These quantities are set out in Schedule 1 of the Criminal Code Regulation 2005.

What Is Trafficking?

To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of trafficking. The term “traffic” is defined in Section 602 of the Code which states that:

A person traffics in a controlled drug if the person:

• sells the drug; or
• prepares the drug for supply either with the intention of selling any of it or believing that someone else intends to sell any of it; or
• transports the drug either with the intention of selling any of it or believing that someone else intends to sell any of it; or
• guards or conceals the drug either with the intention of selling any of it or helping someone else to sell any of it; or
• possesses the drug with the intention of selling any of it.

If you have done any of the above, you may be charged with trafficking ecstasy. You do not have to prepare, transport, conceal, possess and sell ecstasy in order to be found guilty of this offence.

What Actions Might Constitute Trafficking In Ecstasy?

Examples of trafficking ecstasy include:

• You divide ecstasy pills up into zip-lock bags with the intention of giving them to someone else to sell.
• You know your friend sells ecstasy and you are at his house when he receives a request from a buyer. He asks you to conceal the ecstasy in the back seat of the car and come with him to meet up with the buyer.
• You hang around 200m from the entrance of a music festival hoping to sell ecstasy to festival goers as they arrive.

What The Prosecution Must Prove

To convict you of trafficking ecstasy, the prosecution must prove each of the following matters beyond reasonable doubt:

• that you trafficked in a substance; and
• that substance was ecstasy; and
• that the quantity trafficked was equal to, or greater than, the quantity you are charged with trafficking.

Which Court Will Hear My Matter?

These are indictable matters and will be dealt with in the ACT Supreme Court.

Manufacturing Ecstasy

In the ACT it is an offence to manufacture ecstasy. Conviction for this offence can result in a fine of up to 1000 penalty units and/or 10 years imprisonment.

The Offence Of Manufacturing Ecstasy

The offence of manufacturing ecstasy is contained in Section 609 of the Code which states that a person commits an offence if they manufacture a controlled drug (which includes ecstasy). The maximum penalty for this offence is a fine of 1000 penalty units, imprisonment for 10 years or both.

What Is Manufacturing?

To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of manufacturing. The terms “manufacture” and “manufactures” are defined in Section 606 of the Code which states that a person “manufactures” a substance if the person:

• engages in its manufacture; or
• exercises control or direction over its manufacture; or
• provides or arranges finance for its manufacture.

The “manufacture” of a substance is any process by which the substance is produced (other than the cultivation of a plant), and includes the process of:

• extracting or refining it; or
• transforming it into a different substance.

If you have been involved in any of the above you may be charged with manufacturing ecstasy. It is not necessary for you to have been involved in the manufacture from start to finish, or to have been solely responsible for the manufacture in order to be found guilty.

What Actions Might Constitute Manufacturing Ecstasy?

Examples of manufacturing ecstasy include:

• You give someone money to purchase one of the precursors, safrole.
• You direct two men how to set up a lab in the basement of a commercial building you are renting, including how to safely store the solvents and how to properly ventilate the area so the fumes do not fill the basement.
• You cut the cocaine powder with ephedrine, caffeine and amphetamines.

What The Police Must Prove

To convict you of manufacturing ecstasy, the prosecution must prove each of the following matters beyond reasonable doubt:

• that you manufactured a substance; and
• that substance was ecstasy.

However, if you:

• intended to sell any of it; or
• believed that someone else intended to sell any of it; or
• you manufactured a trafficable quantity (10g or more) of ecstasy

then you will likely be charged with Manufacturing Ecstasy for Selling.

Which Court Will Hear Your Matter?

This is an indictable matter and will be dealt with in the ACT Supreme Court.

Manufacturing Ecstasy For Selling

The offence of manufacturing ecstasy for selling is contained in Section 607 of the Code which states that a person commits an offence if they manufacture ecstasy:

• with the intention of selling any of it; or
• believing that someone else intends to sell any of it.

The penalty for this offence depends on the quantity manufactured and is detailed below.

These quantities are set out in Schedule 1 of the Criminal Code Regulation 2005.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.