Sentencing in the Courts is EXTREMELY subjective.
Thus it is impossible to say with any certainty whether someone with 80-100 pills will go to prison. Personally for that many, there would need be EXCEPTIONAL circumstances to keep you out of prison.
I can only talk from a WA perspective but the following may be useful: (I realise this individual may no longer require this info but since it was bumped by none other than BT its deemed relevant).
AMOUNTS
The quantity is simply determined by weighing the pills - not the amount of MDMA they contain. A purity will then be quoted also. Thus you may be caught with 10 pills weighing a total of 3grams at 40% MDMA purity.
2grams raises the PRESUMPTION that you possess with the intent to sell or supply. If you have over this amount you must then have a pretty convincing argument that you possessed them for your own use. Multiple baggies, sharing pills with others etc is a nail in your coffin.
The number of people who apparently admit to having a few to "share" with friends is FRIGHTENING. Once you do that you are gone for intent to sell/supply --> indictable offence in the District Court with potential gaol time; rather than a summary conviction in the petty sessions court with maybe a FINE!!
An interesting excuse that one could try is based upon the decision of now High Court Justice Michael Kirby. In
Liberti v The Queen he held that a person RETURNING the drugs to their original owner, is NOT guilty of supply. Thus if anyone was ever caught handing out that pill to a friend at an event, it is certainly possible that you could attempt an argument that they owned it and you were merely holding it. The case is 12 years old however, and
I do not advise people to get in that position in the first place, so as to test if it is still good law.
Drug Trafficking
28grams is the MAGIC number - over this amount the court AUTOMATICALLY declares you a drug trafficker. Thus for MDMA pills its likely to be anywhere from 80-120 depending on their mass.
Once this declaration is made you are pretty much fucked. The ramifications of this extend far beyond a gaol sentence. In WA you would stand to lose everything you owned. Or at least assets will be frozen and you must prove legitimate ownership --> not always easy.
Yes WA's
Criminal Property Confiscation Act is the toughest in the land but other states have similar and do not rule them out adopting such a regime in the future.
As you can see this is a tragic thing - young people exposed to ecstasy often wind up dealing. This can then escalate to 10s to eventually 100 packs. This amount alone renders that young person a drug trafficker. These are not bikies or organised criminals (as the phrase "drug trafficker" may indicate) but people as young as 18-20 who lose what little they probably own and for the rest of their life have a phrase attached to them that arguably should only be pinned on the big boys.
PENALTIES
I am not going to attempt to outline the penalties imposed - 80 pills is likely to attract gaol - the amount will be subjective. A suspended sentence may be permitted in very exceptional circumstances.
In the
Darwell decision of the WA Court of Criminal Appeal, the justices held that it was now time to FIRM up sentences for amphetamines so they are around those generally reserved for cocaine and heroin only. This was around 1997, when methamphetamine, especially of the high grade variety, became a problem. This was the right thing to do - however sadly MDMA has been dragged along with it -->
because it is AN amphetamine.
Sadly ignorance has led many justices to bundle them together WITHOUT reference to the physiological effects and potential problems of the drug and more importantly the effect they have on the community.
Trust me when District Court judges sentence drug dealers, they are thinking about every other case of property crime and robberies and drug induced violence they have presided over where the same old tired stories of addiction are trotted out by defence counsel. Thus when it comes time to pay back the dealers for what THEY see as the cause of these other crimes, they DO!
As we all know MDMA rarely causes this. However as i said the unfortunate failure to appreciate this means MDMA is just as likely to get as tougher sentence as methamphetamine or cocaine, all other things being equal. Heroin almost always get more, largely due to its level of demonisation above all others.
To prove my point about ignorance one District Court judge actually agreed with the prosecution that MDMA tablets shouldnt be treated as seriously as methylamphetamine and heroin but his hands were tied. However the judges reasons for this were because
"users do not inject ecstasy, thus they do not become addicted to it, and do not commit other crimes to support their habit".
As we all know this is completely missing the point - it is the physiological effects of the drug and also the culture in which the drug is taken that prevents this - not the method of administration!!
It is ignorance like this that makes me want the Darwell decision and others that have followed to be taken to the High Court. Yes MDMA is on the same threshold of seriousness on the statute books; but lets get real. Sentencing should be about harm done to the community. No one can tell me that MDMA has the same sort of POTENTIAL to harm the WIDER community as does similar quantities of methylamphetamine and heroin. Sentencing has nothing to do with the drugs effect on the individual - read the decisions and you will understand by the language the justices use. And in their language the fact that MDMA has found itself alongside the drugs of addiction in the penalties the community seeks for its impact on it, is a travesty.
An example of a sentence for a given amount of heroin:
In Loh v The Queen, unreported; CCA SCt of WA; Library No 940508; 16 September 1994 Malcolm CJ, with whom the other two members of the Court agreed, said at 12 of his reasons:
"In my opinion, it must be taken that the learned Judge, with all of his accumulated experience, was fully aware of the totality principle. This may be inferred from the fact that, taken individually, the sentences of imprisonment for 2 years for each of the counts of selling half an ounce of heroin and the sentence of 3 years for supplying an ounce of heroin were extremely moderate sentences to be imposed in the case of a professional drug dealer involved in the sale of heroin purely for profit."
SUBJECTIVE CONSIDERATIONS
The individual
Previous convictions - especially for drug offences.
Age - older people committing drug offences are treated relatively more seriously than young offenders compared with other offences where it may be more even - violence etc.
Family background
Remorse
Pleading guilty at the earliest possible time
Drug addictions - supply to supplement your own addiction may just spare you gaol time --> it is the first thing i'd be getting my lawyer to say at the sentencing hearing. However some justices do not particulary appreciate this excuse.
Circle of friends - fell in to the wrong crowd - again tired excuses.
Poor - the lure of wealth got too much
As you can see their is an infinite amount of potential factors all weighed up by the judge. Thus it is impossible to know if gaol time will be given. However that described below is more easy to be objective about.
The offending behviour
Purity of the drugs - MDMA will be anywhere from 15% to 50-60%. Thus the very strong pills will get treated more seriously.
Is the dealing a commercial operation? Is money being made to buy things -not just drugs?
What sort of profit is to be made - many offenders once done for the offence will actually admit to the amount they intend to sell them for - thus indicating a profiteering intent - fucking stupid!
How long has the dealing been going on for?
What were the circumstances of the dealing - divided into many bags thus indicating many potential customers?
How high is the individual up in the chain?
How sophisticated is the operation?
Is the dealer just selling to close friends or is it a community wide endeavour with the willingness to supply mere "acquaintances" or even strangers.
Who you are selling it to:
In R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 Pidgeon J, when discussing the maximum penalty relating to the sale of all prescribed drugs (except cannabis), said that weight must be given to the maximum penalty of 25 years imprisonment and to the view that both the legislature and the community take in respect of the distribution of drugs of addiction. His Honour said: "The first indictment showed a systematic selling in an area frequented by young persons. Such conduct can be expected to attract an overall term upwards of 4 years imprisonment."
Drugs for own Use
In
Brittain v The Queen [2001] WASCA 117 the offender was a nightclub promoter who claimed to have a significant drug problem. The offence involved around an ounce each of both MDMA and cocaine. A few interesting comments were made that I have cut and pasted:
Counsel for the applicant had submitted to the Judge that it was not known how much of the drugs the applicant had intended to sell or supply and that "if one is considering the appropriate standard of beyond reasonable doubt, then one could not conclude that he intended to sell or supply the whole of it or indeed intended to sell or supply half of it. All that can be said is that he intended to sell or supply a part of it."
"It was submitted that "between 2 grams and 28 grams is the grey area to determine how much of that quantity was for his own use." It was also submitted that it was of significance that during the trial evidence had been given of a search of the applicant's car and his home. The results of those searches had indicated absolutely no indicia of drug trafficking or incretion of assets. It was submitted that after an investigation of the applicant's finances, it had been revealed that there had been a clear depletion of his assets consistent with the proposition advanced by him in his evidence and in mitigation, that he had been expending large amounts of his own money in pursuit of his drug use."....
"Counsel for the DPP submitted that the DPP "would be happy to proceed on the basis of half and half - half for his own use, half for sale - given the difficulties that arise with this fact finding exercise. I have thought about the matter at some length and I just can't see any way of resolving it."...The applicant was found in possession of 27.7 grams of cocaine at 33 per cent purity and 29.37 grams of ecstasy tablets, ranging from 34 per cent to 41 per cent purity. In my view it can be assumed for the purposes of sentencing that the applicant intended to sell up to 13 grams of cocaine and 14 grams of ecstasy."
It was conceded for the DPP that the head sentence of imprisonment for both offences which had been 7 years imprisonment, should be reduced to less than 5 years imprisonment. However, it was submitted that the sentence should not be suspended due to the serious nature of offences involving the selling of the drugs cocaine and ecstasy. It was submitted that ecstasy is one of the amphetamines group and the distribution of it is now regarded as being at the higher end of the scale of seriousness and in the same category as heroin and cocaine - Darwell v The Queen (1997) 94 A Crim R 35 at 40.
It was further submitted that the major sentencing considerations for offences of this nature are general and personal deterrence, with the main objective being to stop people selling the drugs - R v Bellissimo (1996) 84 A Crim R 464 at 471...
CONCLUSION:
"The applicant has made, in the words of the authorities, impeccable efforts to rid himself of his drug problem. He is to be commended for that. He is also to be given recognition in the sentence for those efforts and his rehabilitation. However, in my view, the offences must result in an immediate prison sentence, although it should be shorter than would normally be imposed for offences of this nature.
I would sentence the applicant to 3 years imprisonment for each of the two offences and order that the sentences be served concurrently and to commence from 30 October 2000, as did the previous sentences which were imposed upon him. The applicant would be eligible for parole.
Anyway i hope that has shed a small amount of light - I could find you case after case with disparate endings but that is the subjective nature of the sentencing process - it has to be like that as personal circumstances and the circumstances surrounding the commission of the offence are important.
Just know that in WA at least, MDMA has, rightly or wrongly, been put up there with the others.
And most of all that magic number of 28grams SHOULD NEVER, EVER be breached. The consequences are too catastrophic. (If you are NOT in WA you should check your state's legislation for this amount)
I would recommend against ALL dealing of course, all i'm saying if any of you or your friends choose to you are EXTREMELY foolish to go above that number. And of course do not forget that the mass of pills you have is deceptively great relative to the number of hits it involves -one HIT = 300mg.
How many people have had a 300mg HIT of crystal meth or even ordinary heroin? Not many that are still around - u get the drift.
