Interview With Charles Henderson, Deputy CEO of NSW Users & Aids Association (NUAA): Penalties for Supplying Magic Mushroom in NSW

By Poppy Morandin and Jimmy Singh.

 

A 19-year-old man faces life imprisonment after allegedly being found with 120 grams of ‘magic mushrooms’.

The vehicle of the Raymond Terrace man was stopped and searched by police officers at Nelsons Plains, resulting in them allegedly uncovering more than 120 grams of the drug, a small amount of cannabis, drug paraphernalia and cash.

The man faces charges of supplying a prohibited drug not less than a large commercial quantity, possessing a prohibited drug and dealing with proceeds of crime, and is currently before the courts.

Pursuant to section 33(3) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or drug concerned, the maximum penalty applicable is a fine of $550,000 and/or life imprisonment.

The threshold of what is considered a ‘large commercial quantity’ of psilocybin (the compound within ‘magic mushrooms’) is 100.0g pursuant Schedule 1 of the DMTA.

This relatively low threshold indicates that one may face the possibility of an incredibly lengthy trip to prison for possessing a handful of mushrooms.

For more legal insight on drug laws in NSW, get in touch with our criminal lawyers in Blacktown, Parramatta and Sydney.

“Classification of psilocybin, and the fact that life imprisonment is associated, is based on outmoded thinking and ignorance.” said Charles Henderson, Deputy CEO of the NSW Users and AIDS Association (NUAA).

“The 100g classification is nominal and creates questions as its not based on actual psilocybin (the compound) but the mushroom’s total weight. This is also to be considered within the context of dried or recently picked (wet) which has an impact on weight – again making the delineation of the classification very arbitrary.” he explained.

“Additionally, the use and procurement of psilocybin is based in nature…the way the fruiting bodies (mushrooms) of the fungus occurs means it’s for a limited time period and often the conditions dictate the quantities of mushrooms picked.

“Individuals do not consider it in terms of grams collected – generally speaking individuals will pick what is there.” he continued.

Classifications of what is considered to be a small, traffickable, indictable, commercial, or large commercial quantity are considered arbitrary and potentially dangerous by many advocates, indicating they often reflect a misunderstanding on the part of the legislature.

Mr Henderson explained that: “NUAA believes the delineation of commercial/trafficable/dealing vs. personal are artificial across all drug legislation…added to this is the very real situation of people using and moving drugs as part of the way drug use occurs within an illegal, black market framework.”

“The problem then becomes that no one of any significance is being busted for dealing or importation/trafficking – just low level (or mid at best) users and people trying to get along in an illegal environment.”

“These sort of classifications impact on the black market and the possible increasing use of synthetics and crypto markets as a way to ensure the psilocybin weight is less by getting the compound specifically or in dried form…increased harms result.”

Magic mushrooms are rarely the subject of prosecution, however a notable precedent is within the case of a Brazilian chef named Lauro Carrilho.

In 2013, Mr Carrilho served 9 months in a maximum-security prison for purchasing a kit to grow mushrooms at home.

He was also caught with a plastic shopping bag filled with 630 grams of mushrooms and was charged with manufacturing and supplying a large commercial quantity of a prohibited drug, which both carry the possibility of life imprisonment.

Carrilho’s defence struck a deal with the prosecution, with the charges downgraded to manufacture and supply of a commercial quantity of a prohibited drug on the basis of a guilty plea.

Ultimately, he was sentenced to a 15-month suspended sentence.

“Something that I never thought was inoffensive, that I never kept a secret, which was the fact that I was growing mushrooms got out,” he commented at the time.

“Prosecutions are rare mainly because the use of the drug is fairly low level and based on group/individual knowledge and understanding…particularly if people are accessing the drug through mushrooms (nature). However, it is not unknown that police attempt ‘stings’ to try to catch people who go to known areas where mushroom grow.” commented Mr Henderson.

Following the first significant winter rain which begins the start of the psilocybin mushroom season, officers in forested towns often dedicate time to search for individuals seeking to pick ‘magic mushrooms’.

In 2019, the National Drug Strategy Household Survey found that use of hallucinogens has increased since 2016, and are at its highest proportions since 2001.

Most people who used hallucinogens had used LSD (73%) and magic mushrooms/psilocybin (61%) in the previous 12 months.

Early this year, the first psychedelic clinical trial commenced at St Vincent’s Hospital Melbourne for terminally ill patients who are experiencing depression or anxiety.

The trial involves 40 patients receiving psilocybin in conjunction with psychotherapy and clinical support, with promising research predicting a reduction in depressive symptoms and a positive shift in perspectives for participants.

The trial took over a year to receive approval from ethics committees and federal and state authorities.

“The issue of legalisation and decriminalisation should be squarely on the political agenda. The use of psychedelics as a therapeutic option is warranted and this will be an avenue for a health-based approach to psilocybin and across all drugs.

“The trial and any outcomes will continue to be debated in a polarised environment – somewhat to the detriment of good drug policy as the evidence is already extensive.” summarised Mr Henderson.

In respect of magic mushrooms, which contain Psilocybin having hallucinogenic properties:

  • Traffickable Quantity is 0.15g
  • Small Quantity: 0.04g
  • Indictable Quantity: 0.25g
  • Commercial Quantity: 25g
  • Large Commercial Quantity: 100g

Where a person is found to have at least the traffickable quantity, he/she is assumed to have it in possession for the purposes of supply unless, he/she can prove that he/she had it for a purpose other than to supply.

Click here for a complete outline of the penalties for each quantity type of prohibited drug supply in NSW.

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