What Does the Prosecution Need to Prove?

To establish manufacturing a controlled drug for sale, the prosecution must prove beyond reasonable doubt that:

1. Manufacturing: The accused intentionally manufactured a controlled drug or took part in the process of manufacturing it.
2. Controlled drug: The substance involved was a controlled drug within the meaning of the legislation.
3. Knowledge or recklessness: The accused knew, or was reckless as to whether, the substance was or would be a controlled drug.
4. Intention or belief concerning sale: The accused intended to sell at least some of the drug or believed that another person intended to sell at least some of it.

For charges involving a commercial or large commercial quantity, the prosecution must also prove that the manufacturing process involved, or would produce, the relevant statutory quantity.

The prosecution does not necessarily need to prove that a completed sale occurred or that the accused intended to sell the entire quantity manufactured.

The prosecution does not need to prove that the accused knew, or was reckless about, the precise identity or quantity of the drug.

What Are the Maximum Penalties for Manufacturing Controlled Drugs?

The maximum penalties under section 33 depend on the amount of drugs involved and whether aggravating circumstances or serious drug offender provisions apply.

• Manufacturing a controlled drug for sale, s 33(3), basic offence: 10 years' imprisonment and/or a $50,000 fine.
• Manufacturing a commercial quantity for sale, s 33(2), basic offence: 25 years' imprisonment and/or a $200,000 fine.
• Manufacturing a large commercial quantity for sale, s 33(1): life imprisonment and/or a $1,000,000 fine.

The court may impose both imprisonment and a fine.

Where an offence under section 33(3) is aggravated, or the offender qualifies as a serious drug offender, the maximum penalty increases to 15 years' imprisonment and/or a $75,000 fine.

For an aggravated commercial quantity offence under section 33(2), or a basic offence involving a serious drug offender, the maximum penalty increases to life imprisonment and/or a $500,000 fine.

These are maximum penalties. The actual sentence depends on the facts, the seriousness of the offending and the offender's personal circumstances.

What is a Commercial or Large Commercial Quantity?

The amount of drugs required to constitute a commercial or large commercial quantity depends on the particular substance.

These quantities are prescribed by the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).

Depending on the drug, the relevant threshold may be determined by:

• The weight of the pure drug;
• The total weight of a mixture containing the drug; or
• The number of discrete dosage units.

Where the manufacturing process has not been completed, the prosecution may rely on evidence concerning the quantity of drugs that would have been produced.

Forensic analysis, the quantity of precursor substances and expert evidence concerning the likely manufacturing output may therefore become important issues.

Can I Be Charged if No Drugs Were Successfully Manufactured?

Yes.

The legislation defines manufacturing broadly enough to include participation in the process before the final drug has been produced.

For example, a person may be accused of manufacturing by participating in the acquisition of chemicals, arranging equipment or assisting in other steps of the manufacturing process.

However, the prosecution must establish that the particular conduct amounted to taking part in the manufacturing process, rather than merely being associated with someone intending to manufacture drugs.

The distinction between preparation, attempted manufacturing and participation in the manufacturing process may be important.

Can I Be Charged if I Only Provided the Premises?

Potentially.

Allowing premises to be used for manufacturing may constitute participation in the manufacturing process.

However, merely owning, renting or residing at premises where drugs are manufactured does not automatically establish criminal responsibility.

The prosecution must prove the required involvement and state of mind.

For example, if a person genuinely did not know that manufacturing was occurring at their property, that may provide grounds to defend the allegation.

What if the Drugs Were Manufactured for Personal Use?

Section 33 requires an intention to sell the drug or a belief that another person intends to sell it.

If the prosecution cannot establish the necessary intention or belief concerning sale, the section 33 offence may not be proved.

However, manufacturing a controlled drug without an intention to sell remains a separate offence under section 33J of the Controlled Substances Act 1984 (SA).

For an ordinary basic offence under section 33J(1), the maximum penalty is 7 years' imprisonment and/or a $30,000 fine.

In aggravated circumstances, or where the offender qualifies as a serious drug offender, higher penalties apply.

Does the Quantity of Drugs Create a Presumption of Manufacturing for Sale?

Yes.

Under section 33(4), where it is established that an accused manufactured a trafficable quantity of a controlled drug, the legislation creates a rebuttable presumption that the accused had the necessary intention or belief concerning sale.

This presumption also applies in specified circumstances involving attempted manufacturing or conspiracy to manufacture a trafficable quantity.

The presumption is rebutted only if the accused proves that they did not intend to sell any of the drug and did not believe that another person intended to sell any of it.

However, the prosecution must still establish the other elements of the offence.

What Defences Are Available to Manufacturing Drug Charges?

The available defences depend on the circumstances of each case.

1. No Involvement in Manufacturing

The accused may deny participating in the manufacturing process. Mere presence at premises containing manufacturing equipment does not necessarily establish guilt.

2. Lack of Knowledge or Intention

The accused may dispute having the required knowledge or intention concerning the alleged manufacturing activity.

3. No Intention or Belief Concerning Sale

The defence may challenge the allegation that the accused intended to sell the drugs or believed that another person intended to sell them.

4. Disputing the Quantity

Where a commercial or large commercial quantity is alleged, the defence may challenge the prosecution's calculations, forensic evidence or conclusions about the likely manufacturing output.

5. Unlawfully Obtained Evidence

If evidence was obtained through an unlawful search or investigative procedure, an application may be made to exclude it where legally available.

6. Duress or Other Defences

In appropriate circumstances, a person may have acted under threats or coercion. The availability of duress or another defence depends upon the legal requirements and the evidence.

An experienced criminal lawyer can assess the prosecution evidence and advise you about the defences available in your case.

Can Police Charge Everyone Found at a Drug Laboratory?

Police may investigate or charge multiple people connected with an alleged drug manufacturing operation.

However, criminal responsibility must be established individually.

A person does not automatically become guilty of manufacturing simply because they were present at a property where drugs, chemicals or manufacturing equipment were discovered.

The prosecution must establish each accused person's relevant participation and the required mental elements of the offence.

Can My House Be Confiscated if Drugs Were Manufactured There?

Potentially.

The Criminal Assets Confiscation Act 2005 (SA) allows authorities to seek orders restraining or confiscating certain property connected with criminal offending, subject to the statutory requirements.

Property that may be affected includes:

• Residential homes and investment properties;
• Bank accounts and cash;
• Vehicles;
• Manufacturing equipment; and
• Other assets.

Importantly, restraining and forfeiture proceedings are separate from the criminal prosecution and may involve complex legal issues.

However, a conviction for manufacturing a commercial or large commercial quantity of a controlled drug for sale makes a person a prescribed drug offender. A forfeiture order is then taken to have been made over all property they own or effectively control on the day of conviction, subject to limited exceptions. Repeat convictions for serious drug offences within 10 years can have the same result.

A person facing manufacturing charges should obtain advice about the possible consequences for their property as well as the criminal charge.

What Should I Do if I Am Being Investigated for Manufacturing Drugs?

If police are investigating you for manufacturing controlled drugs, you should obtain legal advice before participating in a police interview.

A criminal lawyer can advise you about your rights, examine any available evidence and assist with the investigation or subsequent court proceedings.

Early legal advice can be particularly important where police have seized electronic devices, financial records, chemicals or equipment.