Drug Offences in Victoria

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Drug offences contain variously related, attached and suspected actions towards the use, possession, abuse or intoxication, or trafficking of drugs. Drug Laws are tight and straightforward in Australia, especially for states like Victoria. Defaulting on any of the drug laws in Australia as stipulated by legislation can attract;

• Harsh penalties,
• Getting a Drug Criminal Record disclosed in your Nationally Coordinated Criminal History Check certificate,
• For some cases, no option of an intervention program, or Good Behaviour Bond.

The legislation that provides further details, including punishments and terms of offence is the Drugs, Poisons and Controlled Substances Act 1981 (DPCS Act). And the Act contains all the possible criminal offences from the use, distribution and possession of illicit drugs.

What are the types of Drug offences in Victoria?

The Act comprises two types of offences under which a person is charged in a Victorian Court. It includes;

• Offences with drugs of dependence

These drugs are illegal to possess without a doctor's prescription or note. It also covers Schedule 8 drugs (including schedule 3 and 4 substances).

Synthetic drugs, and Analogues of drugs were recently included in this list (drug of dependence). An analogue of a drug is just a similar but modified version of the drug.

• Drugs that are illegal under any condition

These drugs will earn you a criminal offence if they are found with you. Under no condition should you possess any of these drugs. Some of them are;

• Cannabis
• Cocaine
• Methamphetamine
• Heroin
• And some other chemical substances

These drug offences are treated as the same criminal offence in a Victorian court. However, you may receive different sentencing based on the type of drug law you breached.

Furthermore, the penalties for these drug offences are related to the quantity the offender possesses. The greater the quantity of the drug, the more severe the punishments will become.

What are the various actions that constitute a Drug Offence in Victoria?

The State pronounces you guilty of a drug offence depending on the following actions relating to the drugs. These actions with drugs include;

Under section 70(1) of the DCPS Act, the use of Drugs may be defined as smoking, inhaling the fumes, injecting, swallowing or taking these drugs through any means into your body.

The penalties the court imposes for drug offences depends on the amount or quantity they have consumed.

Section 75 of the Act stipulates these offences as summary offences, and the penalties the offender get are;

Tetrahydrocannabinol (THC)/Cannabis Use attracts penalties (s75(a)) up to;

• 5 penalty units ($758.35) in fines; and/or
• No jail term applies for this drug use, even for repeat offences.

• 30 penalty units ($4550.10) in fines, or
• 1-year imprisonment term,
• Or both

Drug Possession

Section 73 of the DPCS Act lists possession of these drugs as indictable offences within Victoria State. This decision is referenced from the Victorian Supreme court ruling of; R v Clarke & Johnstone [1986] VR 643.

A person possesses a drug if they;

✔ Have physical control or custody of it,
✔ Acting together with a person that "possessed" it,
✔ Have full knowledge of the drug they carry,
✔ Had the intention to "possess" the drug.

A person can “possess” drug through any of these mediums;

• on land or premises occupied by the alleged possessor, or
• in any place whatsoever that is used, enjoyed or controlled by the accused "possessor".

Under the DCPS Act, the accused will remain guilty of possession unless they can prove on the “balance of probability” that they were not in common law possession of the drug.

This type of defence is a “Deeming Possession”; the accused person is granted the burden of proof rather than the accuser. And it includes situations where the accused is;

✔ The occupier of the land where the cannabis is grown
✔ A spouse to the person who occupies the place where the cannabis was found.
✔ The occupier of rooms in a motel where the drugs are found.
✔ The owner, or driver of a car containing the drugs (on the basis that they controlled the drugs in any place).

Penalties for Drug Possession in Victoria

1. Possession of 50 grams or less of THC/Cannabis not related to trafficking will get penalties of not more than 5 penalty units. It is treated as a summary offence (Magistrate Court).
2. First-time offenders for this range of offences will receive a Section 76 bond or a Police caution rather than a court conviction.

The maximum penalty for the possession of any other drug where it is not related to trafficking is;

• fine of 30 penalty units, or
• 1-year imprisonment,
• Or both.

For any of these two sentencing to apply (as summary offences), the accused must satisfy the court per the balance of probabilities that "the possession" had nothing to do with trafficking of the drugs.

However, if the court is not satisfied with the accused defence that possession had nothing to do with trafficking, then it imposes higher penalties of;

• 400 penalty units in fines, or
• 5 years imprisonment term,
• Or both

Drug Cultivation

It is an offence to cultivate or grow a narcotic plant, seed or roots, or its relative compounds in any form in Victoria. Section 72B of the Act includes; sowing, planting, growing, tending, grafting, dividing, transplanting, nurturing or harvesting.

The prosecution may not need to prove that the offender knew the plant they cultivated. However, it may still be a defence if you did not know, or suspect or expect that you were cultivating a narcotic plant.

Penalties for Drug Cultivation in Victoria

The court will impose penalties depending on the quantity of the narcotic plant cultivated. The court can issue penalties (s72A)

1. The maximum penalty if the cultivation is related to trafficking is 1800 penalty units ($273,006), or imprisonment for 15 years.
2. The maximum penalty for the cultivation of a commercial quantity (100 or more plants) is 3000 penalty units ($455,010) 25 year's imprisonment, or both.
3. The maximum penalty for a large commercial quantity is 5000 penalty units ($758,350) and/or life imprisonment.

Drug Trafficking in Victoria

The offences of Drug Trafficking as detailed in the (s70(1)) of the DCPS Act includes the following;

• Preparing drugs for trafficking (e.g. drying cannabis, packaging up drugs) even though no drugs have as yet been trafficked.
• Manufacturing or making the drug;
• Selling, exchanging or agreeing to sell;
• Offering for sale, even if no sale takes place or if the person had no intention of going through with the sale, or if the drug when analysed turns out not to be a drug.
• Buying drugs on behalf of someone else, even if the buyer doesn't profit from the transaction.

Penalties of Drug Trafficking in Victoria

Drug Trafficking offences incur some of the most severe penalties in Victoria. They are categorised based on the quantity, person trafficked to, or a prescribed condition;

Trafficking of Non-commercial quantities incurs punishments of;

• 1800 penalty units or $273,006.00 fine,
• and/or imprisonment for 15 years

For offences of trafficking to a person under 18 or within 500 metres of a school; the penalties are;

• 2400 penalty units or $364,008.00 fines,
• and/or imprisonment for 20 years

For trafficking Commercial quantities; the penalties are;

• 3000 penalty units or $455,010.00 fines,
• and/or imprisonment for 25 years

For trafficking large commercial quantities, the court will impose penalties of;

• $758,350.00,
• and/or life imprisonment

For possession of a tablet press or a prescribed precursor chemical, the penalties are;

• $91,002.00,
• and/or 5 year's imprisonment

For possession of substance or material, or documents (relating to preparation, cultivation or manufacture of a drug) or equipment for trafficking a drug;

• 10 years imprisonment

Cautions or Intervention Scheme

Not every drug offence will result in a court conviction or jail term. The court can with their discretion apply other means to deal with first-time offenders. These programs aim to;

• Divert or prevent a person from the criminal justice system, or
• Help rehabilitate offenders with a drug problem.

It is common for a first-time drug offender to receive a caution or court official warning instead of a criminal conviction or other punishments.

The caution is issued by the Police with certain conditions or programs the offender must complete.

Furthermore, If the offender completes this program, the charge will be withdrawn by the Police, and a Police caution is issued for a period. Some of these programs in the caution can be;

✔ Counselling programs
✔ Rehabilitation programs

However, if the offender fails to complete any of these programs, the Police (prosecutor) will proceed with the charge in court.

Other Diversion Programs

The Criminal Justice Diversion program may also be imposed instead of sentencing for first-time drug offenders. However, the Police informant must consent to the diversion, and the Magistrate must also agree to the terms and programs after evaluating some factors.

The Magistrate will agree to a diversion program if/when the;

• The offender accepts full responsibility and agrees to the impact of their offence
• The offender is not a repeat offender (should be a young/first time offender)
• Has satisfied all the pre and post conditions issued by the court for the diversionary program.

These programs listed here are alternative terms to a court sentencing or conviction with far less damaging consequences. It is better to get the court to grant you these programs rather than a conviction, especially where your criminal records are referenced for lots of purposes.

Do Drug Offences Show up on a Nationally Coordinated Criminal History Check?

Drug offences are a serious criminal offence and where the offence accumulates in a court conviction, the offence will show up on the individual's Nationally Coordinated Criminal History Check.

Individuals obtain their Nationally Coordinated Criminal History Check online from the Australian National Character Check website.

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