Magic Mushrooms and the Criminal Law

Whether you are a Viking letting loose on the battlefield or a resident of Nimbin, since time immemorial, humans have been picking up funny looking mushrooms and eating them to get high.

In a recent set of cases here at Green and Associates we have had a number of clients who have been caught with magic mushrooms and charged with very serious drug offences. Luckily, we know some little loopholes in some poorly drafted parts of the Drug Misuse and Trafficking Act (‘DM&T’).

How Do Drug Charges Work?

When considering what is the appropriate charge, the first question is: ‘How much drug is there’? 

Schedule 1 of the DM&T sets out the statutory schedule which particularises the thresholds to distinguish between the seriousness of different drug offences. The thresholds are figurative lines in the sand which, if crossed escalate the seriousness of the charge.

At the bottom level of seriousness are “Possess prohibited drugs” offences, where it is accepted that a person holds drugs for their own benefit and not for the purpose of supply.

As a general rule if the amount of drugs is below the “Traffickable Quantity” it will generally be accepted as being for personal use and the appropriate charge would be “Possess”.

If the amount of drugs falls above the “Traffickable Quantity” then it is presumed that the drugs are for the purpose of supply and as such the appropriate charge is “Supply Prohibited Drugs.”

The thresholds in the DM&T provide an ascending order of seriousness:

Small Quantity -> Indictable Quantity -> Commercial Quantity – > Large Commercial Quantity.

The more serious the charge the bigger the penalty.

So, what is the problem?

Magic mushrooms (be they psilocin or psilocybin) are dealt with differently than other illicit drugs which are derived from vegetable matter. The DM&T splits off cannabis into different thresholds based on whether it is raw vegetable matter, THC oil or resin.

To put it in perspective, let’s say you had a fun-sized Mars bar which weighs 47 grams worth of drugs:

If it was cannabis leaf you would fall well below the trafficable quantity of 300 grams. If it was oil however, you would not only be above the trafficable quantity of 5 grams but would be 4 times the indictable quantity of 10 grams.

The problem is that Magic Mushrooms are framed in terms of “discrete dosage units”, which are an entirely different measurement altogether (speak to us about the schedule).   

The Schedule caters not for the vegetative matter, but for its derivatives such as oils and pills. The weight of these pills is much less than the raw vegetative material. To address this the DM&T also deals with Magic Mushrooms in Discrete dosage units (DDU), which is the amount of active ingredient in a single “dose.” 

The problem with the DDU is that Police rarely test the purity of magic mushrooms and as such you are left with the raw weight.

So, I took a Mars bar worth of mushrooms into a music festival and am being treated like Scarface, what do I do?

The important thing is to put things in context, especially when the law is being inappropriately applied.

The European Monitoring Centre for Drug and Drug Addiction (EMCDDA) provides researched based profiles on a large variety of prohibited substances, and is available to the public.

The EMCDDA identifies that hallucinogenic mushrooms show a large variety in potency and that the most potent species contain up to 1% (10 mg per 1 gram of dried mushrooms) although noting that higher concentrations have been reported.

As such your Mars bar which would otherwise be regarded as almost double the Commercial Quantity, should be treated as being above the Indictable Quantity when considering how serious it is.

How is this useful?

Because the weights of the drugs are what they are, you are unable to degrade which threshold it falls in when you are considering the Supply charges.

However, this can be incredibly useful in arguing that smaller and even indictable Supply charges are in fact Possession matters. Even for more serious charges, this is useful in reducing the seriousness of the charges and getting a drastically better result on sentence. 

Drug charges can be complicated and can have long running implications on people’s lives. To discuss your matter with experienced criminal lawyers, contact Green and Associates at (02) 8080 7585.


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