LAWYERS for a man convicted of supplying a commercial quantity of psychedelic drug psilocybin are arguing the weight of the drug should exclude the mushrooms in which it is naturally found, in what could be a precedent-setting case for how drug quantities are determined.
Thomas Jenkinson was sitting in a parked car in Nelsons Plains on the night of May 1, 2020 when police approached and searched his vehicle.
Inside they found cannabis leaf, scales, cash and 12 plastic bags containing a total of 98 grams of mushrooms.
The threshold for supplying a large commercial quantity of 'magic mushrooms' is 100 grams.
And, according to police and prosecutors, Jenkinson had nearly four times the quantity required for supplying a commercial quantity of a prohibited drug, which carries a maximum of 20 years in jail.
Jenkinson did not deny possessing the mushrooms, but he pleaded not guilty to supplying a commercial quantity of the drug.
And during a judge-alone trial in Newcastle District Court in April last year, his legal team, led by defence barrister Rory Pettit and solicitor Drew Hamilton, argued the weight of psilocybin should exclude the weight of the mushrooms in which it is naturally found.
If the mushrooms were excluded, then the weight of the drug would be much lower and would not reach the threshold of supplying a commercial quantity, Mr Pettit argued.
However, Judge James Bennett found the relevant weight of psilocybin included the weight of the mushrooms in which it was naturally found and convicted Jenkinson of supplying a commercial quantity of a prohibited drug.
He was spared a jail term and ultimately ordered to serve a two-and-a-half year intensive corrections order.
Not done, lawyers for Jenkinson lodged an appeal against the conviction to the Court of Criminal Appeal on the basis that Judge Bennett made an error in his finding.
That appeal was heard in the CCA last week and the thrust of Mr Pettit's submissions focused on the "admixture rule" in the Drug Misuse and Trafficking Act.
"The question of statutory interpretation on which this case turns is whether the admixture rule applies such that a reference to a prohibited drug includes a reference to a plant or fungus of which that prohibited drug is a natural constituent," Mr Pettit said in written submissions. "More specifically, it depends on whether the phrase "preparation, admixture, extract or other substance...of the prohibited drug" within the admixture rule should be construed to capture plants or fungi of which a prohibited drug is a natural constituent. The applicant's critical submission is that the phrase "or other substance" in the admixture rule is limited by its purpose, and surrounding statutory text and context, such that it can only apply to substances which are created, altered, or combined by human intervention so as to contain the prohibited drug. As such, the phrase cannot contemplate plants or fungi of which a prohibited drug is a natural constituent."
The three-judge panel reserved their decision.