Drug offences in Victoria are contained in the Drugs, Poisons and Controlled Substances Act 1981 (Drugs Act). The Act comprises offences for 2 types of illegal drugs (drug of dependence), being drugs you can’t possess without a prescription, and drugs you can’t possess under any circumstance. The second group includes:
- heroin, and
- some other chemical substances.
Synthetic drugs and analogues of drugs have been added to the list of drugs of dependence. An analogue of a drug is a similar, but modified version of the drug.
The legislation provides for variations in offences and their penalties depending upon the quantities of drugs involved – the greater the amount that is possessed or trafficked, the more significant the penalty.
It is also an offence to conspire to commit drug offences in Victoria, or to attempt to commit an offence or to help, induce or encourage someone else to commit an offence.
For drug offences in Victoria, ‘using’ means consuming the drug by smoking, injecting, inhaling, swallowing, or in any other way getting it into your body.
For cannabis the maximum penalty for use is $758.35. For other drugs, the maximum penalty is $4,550.10, 1 year’s imprisonment, or both.
If the court believes the drugs were intended for trafficking rather than use, the maximum penalty is $6,668, 5 year’s imprisonment, or both.
A person ‘possesses’ a drug if they have physical control or custody of it to the exclusion of anyone else who is not acting with them, unless they didn’t know they had the drug, or, if they did know, didn’t intend to possess it. Possession includes where drugs are:
- on land or premises occupied by the alleged possessor, or
- in any place whatsoever that is used, enjoyed or controlled by the alleged possessor.
Possession of up to 50 grams of cannabis for personal use carries a fine only. For larger quantities of cannabis or for any other drug the penalty is a fine and/or imprisonment of up to 1 year.
It’s an offence to cultivate a narcotic plant, including seeds or a cutting with or without roots (eg cannabis, opium poppy, coca plant). ‘Cultivate’ includes sowing, planting, growing, tending, grafting, dividing, transplanting, nurturing or harvesting.
If the court accepts the drug being cultivated is for personal use only (generally less than 10 plants) the maximum penalty is $3,033.40, imprisonment for 1 year, or both. The court may also impose a bond under section 76 of the Drugs Act.
The maximum penalty if the cultivation is related to trafficking is $273,006, or imprisonment for 15 years.
The maximum penalty for cultivation of a commercial quantity (100 or more plants) is $455,010, 25 year’s imprisonment, or both.
The maximum penalty for a large commercial quantity is $758,350 and/or life imprisonment.
It is a defence if the person did not know or suspect, or could not be expected to know or suspect, that the plant being cultivated was classified as a narcotic.
‘Trafficking’ drugs means, for example, selling, manufacturing, possessing for sale, and offering for sale. Giving a drug as a gift is generally not considered trafficking.
Trafficking is often proved by direct evidence through the observation of, or participation in, a sale. It may, though, also be proved by inference, such as where a person is selling or manufacturing more than one person would usually require, having the traffickable quantity (defined by weight or number of plants) of drugs packaged for sale, and/or having other items indicating it may be for selling, such as weigh scales, bags, or cash.
- preparing drugs for trafficking (eg drying cannabis, packaging up drugs) even though no drugs have as yet been actually 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.
Drug offences in Victoria relating to trafficking carry potentially very heavy penalties:
|Non-commercial quantities||$273,006.00 and/or imprisonment for 15 years|
|To a person under 18||$364,008.00 and/or imprisonment for 20 years|
|Commercial quantities||$455,010.00 and/or imprisonment for 25 years|
|Large commercial quantity||$758,350.00 and/or life imprisonment|
|Possess a tablet press or a prescribed precursor chemical||$91,002.00 and/or 5 year’s imprisonment|
|Possess substance or material, or documents (relating to preparation, cultivation or manufacture of a drug) or equipment for trafficking a drug||10 year’s imprisonment|
It’s also an offence in Victoria to:
- put a drug into another person’s body
- forge a prescription
- make any false representation to obtain:
- a drug from an authorised person as defined in the Drugs Act
- a prescription for a drug from a doctor
- an injection of a drug by a doctor
- the filling of a prescription
- do something in Victoria in respect of a drug offence outside of Victoria.
This article reflects the state of the law as at 13 April 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.