Victorian drug laws

Victorian drug law covers the use, possession, cultivation, trafficking and conspiracy relating to illegal drugs. The penalties for these different offences varies greatly from a caution to serious terms of imprisonment.

What do state laws cover?

For the purposes of Victorian law, the term “drug” means a drug of dependence. For the definition of drug of dependence, see section 4(1) and schedule 11 of the DPCSA. Recent amendments to the DPCSA have added synthetic cannabis and other synthetic substances to the list of drugs of dependence, as well as “analogues” of drugs. An analogue of a drug is a similar, but structurally modified version of the drug.

The DPCSA creates the following major drug offences:

  • use;
  • possession;
  • cultivation;
  • trafficking; and
  • conspiracy.

Use: offences and penalties

The use of a drug of dependence is an offence. Section 70(1) of the DPCSA defines “use” as including smoking, inhaling the fumes of, or introducing a drug of dependence into a person’s body.

Penalties

The offence of use of a drug of dependence is a summary offence (s 75). The use of cannabis or tetrahydrocannabinol (THC) carries a maximum penalty of up to 5 pu; there is no jail penalty, even for subsequent offences (s 75(a)).

The use of other drugs carries a maximum penalty of a fine of up to 30 pu or imprisonment for one year, or both (s 75(b)).

Cautioning scheme

The Victoria Police and the Victorian courts have introduced several alternative schemes to deal with drug offenders. Some of these schemes aim to divert people from the criminal justice system, while other schemes focus on rehabilitating offenders with drug problems.

First-time cannabis or heroin users will normally be cautioned rather than charged. The decision to caution and not charge is at the discretion of the police informant.

Under the cautioning system, offenders are formally cautioned at a police station and then referred to compulsory counselling at a drug treatment centre. Failure to attend this counselling might result in charges being laid.

Court-based support services

There are several support programs that assist people who have drug or alcohol dependence and who are appearing before the Magistrates’ Court.

CREDIT/Bail Support Program

The Court Referral and Evaluation for Drug Intervention and Treatment (CREDIT)/Bail Support Program is a Magistrates’ Court program designed to assist people on bail who have a drug problem by providing access to treatment. The program can also provide assistance with accommodation, material aid, employment and training, and other social issues.

A person may be eligible for this program if they:

  • have a drug problem;
  • have been charged with a non-violent offence;
  • are on bail;
  • are not on any court order with a drug treatment component; and
  • have been bailed to a court where the CREDIT/Bail Support Program operates.

The CREDIT/Bail Support Program currently operates at the Magistrates’ Courts in Ballarat, Broadmeadows, Dandenong, Frankston, Geelong, Heidelberg, Moorabbin and Ringwood.

The Court Integrated Services Program

The Court Integrated Services Program (CISP) provides case management to people who have health and social issues. These issues include drug and alcohol dependence, poor mental health, homelessness and disability. For people who require intensive support, the program provides referrals to treatment agencies and outreach services.

A person may be eligible for this program if:

  • they are appearing before a court where CISP operates (CISP currently operates at the Magistrates’ Courts in Melbourne, Sunshine and the La Trobe Valley);
  • their charges or history indicate that support is required in order to reduce the likelihood of them reoffending;
  • they have a physical or mental disability or illness; or
  • they have issues relating to drug or alcohol use, or relating to lack of social, family or economic support.

A person does not have to be on bail to be eligible for this program.

Referral and treatment

Anyone can refer a person to the CREDIT program or to CISP. The only requirement is that the person meets the eligibility criteria. The police might refer someone by bailing them to attend an assessment. Magistrates can also refer people. Alternatively, people can self-refer or have their legal representative contact the programs’ clinicians at court.

Once someone is placed in one of the programs, a clinician will arrange for the person to be assessed. Suitable treatment (provided by various support agencies) is arranged after the assessment. If drug dependence is a problem, the clinician will arrange treatment at an accredited drug treatment agency (the first appointment is usually attended within three working days). Once a person is part of the CREDIT program or CISP, it becomes a condition of bail that they comply with all the directions of the program.

When the person returns to court, the clinician will have prepared a report for the magistrate. The program usually lasts three to four months, with reviews every month. A person’s performance during the program is taken into account at sentencing. Successful participation in the program should result in a lesser sentence and, in some cases, can make the difference between going to jail or not. However, it is not necessary to plead guilty in order to participate in either program.

CISP currently operates at the Magistrates’ Courts in Melbourne, Sunshine and the La Trobe Valley.

For more information, telephone 9628 7975 or 9628 7936, or go to the Magistrates’ Court website at magistratescourt.vic.gov.au.

Diversion

The Criminal Justice Diversion Program (seeDiversion“ in Sentencing in the Magistrates’ Court) may also be relevant for first-time drug offenders. If the police informant consents to diversion, and if the magistrate is satisfied that diversion is appropriate, and if the accused “acknowledges responsibility” for the offence, the charges will be adjourned until after the accused has participated in the program. The accused is not required to formally plead guilty to the drug offence.

On completion of certain conditions of the program (such as undertaking drug treatment or counselling, making a donation to a charity, etc.) the court will discharge the accused without making any finding of guilt or imposing any sentence or penalty (s 59(4) Criminal Procedure Act 2009 (Vic)).

Most people would strongly wish to avoid a conviction or finding of guilt for a drug offence. This is particularly important for those who wish to travel overseas, as any drug-related criminal record will make it difficult to enter a number of countries (see Understanding criminal records).

For more information, telephone the Senior Diversion Coordinator on 9628 7862, or go to the Magistrates’ Court website at magistratescourt.vic.gov.au.

Possession: offences and penalties

What is possession?

“Possession” is an indictable offence under section 73 of the DPCSA. The application of the common law to possession in that section has been affirmed by the full court of the Victorian Supreme Court in the decision of R v Clarke and Johnstone [1986] VR 643.

Under common law, a person is in possession of a drug if they have physical control or custody of the drug to the exclusion of others not acting in concert with the person. The prosecution must prove knowledge by the person of the presence of the drug and an intention by the person to possess the drug.

In many cases, custody of a drug may be sufficient evidence of possession, including the necessary mental element. This is because the inference of knowledge may often be drawn from the surrounding circumstances (Williams v The Queen [1978] HCA 49).

As well as its common law meaning, “possession” has an extended meaning under the DPCSA: section 5 states that a person is in possession of drugs if the drugs are:

  • on any land or premises occupied by the person; or
  • used, enjoyed or controlled by the person in any place whatsoever, unless the person satisfies the court to the contrary.

R v Clarke and Johnstone has authoritatively decided that section 5 of the DPCSA puts the onus on the prosecution to prove beyond reasonable doubt either occupation of the relevant land or premises where the drug was found or that the drug was used, controlled or enjoyed by the accused in any place whatsoever.

The legal test of occupation is having the requisite degree of control over land or premises so as to be able to exclude others. Mere use of premises is insufficient (Fox v Warde [1978] VR 362). See also Thow v Campbell [1996] QCA 522; and R v Pisano [1997] 2 VR 342.

Statutory possession: burden of proof

If the court is satisfied that:

  1. the substance found on the premises was an illegal drug; and
  2. the premises were occupied by the accused,

the accused is guilty of possession unless they can prove, on the balance of probabilities, that they were not in common law possession of the drug.

This is a “deeming” provision that shifts the burden of proof (albeit on the balance of probabilities) to the accused.

Deemed possession includes situations where the accused was:

  1. the occupier of land where cannabis is grown;
  2. a husband or wife who occupy (as owners or tenants) a house where drugs are found;
  3. the occupier of a room in a motel where drugs are found; or
  4. possibly the owner or driver of a car containing drugs ““ on the basis that the drugs are “controlled” by them “in any place whatsoever”.

The burden of proof on the accused can be satisfied if it can be proved that the accused did not know the drug was there or, even if the existence of the drug was known, did not intend to possess it.

Note that the High Court has held in Momcilovic v The Queen [2011] HCA 34 that the s 5 deeming provision applies only to possession-type offences and does not apply to trafficking charges based on possession.

Some other cases worth considering in relation to possession are:

  • Kural v The Queen [1987] HCA 16;
  • He Kaw Teh v The Queen [1985] HCA 43;
  • Pereira v Director of Public Prosecutions [1988]; and
  • R v Clare (1993) 72 A Crim R 357; [1994] 2 Qd R 619.

Penalties for possession

Possession of cannabis or THC in a small quantity (50 grams or less) not related to trafficking carries a penalty of not more than 5 pu. For a first-time offender, the most likely penalty is a section 76 bond (seeSummary of penalties“). Under the cannabis cautioning scheme noted above, those found in possession of a small quantity of cannabis for the first time are usually cautioned.

The maximum penalty for possession of any drug where possession of the drug is not related to trafficking is a fine of 30 pu or imprisonment for one year, or both (s 73(1)(b)).

For these two sentencing categories to apply, the accused must satisfy the court, on the balance of probabilities, that the possession was not related to trafficking. If the court is not satisfied that the possession was not for the purpose of trafficking then there is a higher maximum penalty of a fine of up to 400 pu or imprisonment for five years, or both (s 73(1)(c)).

Possession of a traffickable quantity

If the prosecution proves:

  • possession;
  • the identity of the drug; and
  • that the quantity is a traffickable quantity,

then that is prima facie evidence of trafficking (s 73(2)) (seeTrafficking: offences and penalties“).

Cultivation: offences and penalties

What is cultivation?

Cultivation of a non-commercial quantity of a narcotic plant is an indictable offence triable summarily (s 72B DPCSA). A narcotic plant is defined in section 70(1) with reference to schedule 11, part 2. A narcotic plant includes a cutting of a plant, whether or not the cutting has roots. The more commonly known plants are cannabis, the opium poppy and the coca plant.

There is a wide statutory definition of “cultivation” (s 70(1)). To cultivate includes to sow, plant, grow, tend, graft, divide, transplant, nurture or harvest a narcotic plant. A single one of these acts constitutes the offence; for example, to water (nurture) a plant or to harvest one leaf constitutes the act of cultivation for the purposes of the DPCSA.

The prosecution does not need to prove that the offender knew that the plant was a narcotic plant. However, it is a defence to not know, suspect or reasonably have been expected to know or suspect that the plant was a narcotic plant (s 72C).

Penalties for cultivation

If the court is satisfied on the balance of probabilities that the cultivation was not related to trafficking, then the penalty is a fine of not more than 20 pu, or imprisonment of not more than one year, or both (s 72B(a)). In these circumstances, the court also has the option of a bond under section 76(1)(a)(i) (seeSummary of penalties“).

The penalty for cultivation ““ where the purpose is related to trafficking ““ is a fine of not more than 1,800 pu, or imprisonment for a maximum of 15 years (s 72B(b)).

The penalty for the cultivation of a commercial quantity of a narcotic plant is imprisonment for a maximum of 25 years (s 72A). A fine of up to 3,000 pu may also be imposed. The prosecution must prove beyond reasonable doubt that the accused had actual knowledge of the quantity of cannabis alleged to have been cultivated, that is, that the accused knew there were 100 or more plants being cultivated (see R v Van Xuan Bui [2005] VSCA 300).

For a large commercial quantity, the maximum penalty is life imprisonment and a fine of up to 5,000 pu (s 72).

Trafficking: offences and penalties

Trafficking is an indictable offence, but it can be tried summarily for amounts under a commercial quantity.

What is trafficking?

Trafficking at common law means “movement from source to ultimate user in the course of trade” (R v Clarke and Johnstone [1986] VR 643 at 659). It includes selling in the ordinary sense.

Trafficking may be proved by:

  1. direct evidence (observation of, or participation in, a sale);
  2. inference (a conclusion from a set of facts, such as possession of a quantity of a drug much larger than for personal use, which drug has been packaged for sale, and where there are a number of the trappings of sale present, such as scales, bags, cash, etc.); or
  3. admission (a confession to the police).

Trafficking has elements of movement and commerce (see R v Holman [1982] VR 471, at 475 per Lush J, and compare D’Aloia, Bruno v Brilliant, Peter Alan [1984] VicSC 292).

NOTE

To make a gift is not trafficking.

Extended definition under the DPCSA

Section 70(1) of the DPCSA extends the definition of trafficking to include:

  1. preparing a drug of dependence for trafficking;
  2. manufacturing a drug of dependence; or
  3. selling, exchanging, agreeing to sell, offering for sale, or having in possession for sale, a drug of dependence.

The following may now constitute trafficking:

  1. preparing a drug for trafficking ““ thus a person who dries cannabis or packages heroin is guilty of trafficking, provided that the preparation was intended for trafficking; this is so even though no actual trafficking has occurred;
  2. manufacturing or making a drug, even though no actual trafficking has occurred;
  3. selling or exchanging a drug for something;
  4. agreeing to sell, even though the actual sale does not occur;
  5. offering to sell a drug to another, whether or not the offer is accepted or the sale takes place. Even if the substance turns out not to be a drug of dependence on analysis, the mere belief by an accused that they were selling a drug of dependence is sufficient to come within the ambit of “offering to sell” (Gauci v Driscoll [1985] VR 428). The case of Pierce v The Queen [1996] 2 VR 215 extends offering to sell to include a “rip-off”, so that even where there is no proof that there is an intention to complete the offer or that the accused was even in a position to complete such, they may be found guilty of trafficking. In the Pierce case, the court only required proof that the accused intended the offer to sell to be taken seriously;
  6. possessing a drug together with an intention to sell it, even though there is no sale. It is common to find persons telling the police that the reason for their possession is that they intend to sell some of the drug, but that confession is accompanied by a vehement denial that any sale has taken place. These persons are guilty of trafficking;
  7. buying drugs for a friend from a third person if that friend has given you the money to buy the drugs, even if a profit is not made from the transaction;
  8. arranging for one party to sell to another party, even if no profit is made.

Penalties for trafficking

For trafficking offences of non-commercial quantities heard on indictment, the maximum penalty is imprisonment for 15 years, or a fine of up to 1,800 pu, or both (s 71AC DPCSA).

For trafficking to a person under the age of 18 years of age, the maximum penalty is imprisonment for 20 years, or a fine of up to 2,400 pu, or both (s 71AB).

Penalties for trafficking commercial quantities are very severe: the maximum penalty is imprisonment for 25 years, or a fine of 3,000 pu, or both (s 71AA).

Prima facie evidence of trafficking

If a person has in their possession a traffickable quantity, this is prima facie evidence of trafficking. This means that a court or jury, in the absence of evidence to the contrary, may be satisfied beyond reasonable doubt that the offence has been committed (s 73(2)). The burden remains on the prosecution to establish the case beyond reasonable doubt. That is, although the amount in a person’s possession may establish trafficking prima facie, a court or jury may, after considering all of the circumstances and whether or not the accused has given evidence, decide that the prosecution has not proven trafficking beyond reasonable doubt.

If the prosecution proves:

  1. possession (seePossession: offences and penalties“, and note the effect of Momcilovic v The Queen);
  2. the identity of the drug; and
  3. the quantity is a traffickable quantity (see below),

then that is prima facie evidence of trafficking.

Possession is prima facie evidence of trafficking in the way/s that are consistent in the case. In a case where all the evidence showed that the person in possession had not manufactured the drug, the possession would not be prima facie evidence of trafficking in that way (R v Clarke and Johnstone [1986] VR 643 at 659).

Quantities

While the Court of Appeal has decided that the relative harmfulness of the particular drug is an irrelevant consideration when determining sentences (R v Pidoto and O’Dea [2006] VSCA 185), the amount of a drug alleged to be possessed or trafficked has a significant impact on the penalty.

The legislation now provides for a distinction to be made between the following quantities: small, traffickable, commercial mixed, commercial pure, large commercial mixed, and large commercial pure. The exact measurements of these quantities for each type of drug is set out in the DPCSA (sch 11). Schedule 11, part 1 contains the list of substances categorised by pure weight. Part 2 lists narcotic plants. Part 3 lists powders in pure and mixed maximum quantities.

Small quantity

Small quantities attract much lower penalties for any drug offences. For a first offence of possession, there is a presumption in favour of a section 76 bond (seeSummary of penalties“).

A small quantity of fresh or dried cannabis is 50 grams or less. The weight in grams of a small quantity of any drug in powder form is listed in schedule 11, part 3, column 4 of the DPCSA. The quantity includes the weight of any substance with which the drug is mixed.

Traffickable quantity

A traffickable quantity is defined by weight or number of plants (s 70(1)). Applicable amounts are listed in schedule 11, parts 1, 2 and 3, column 3 of the DPCSA.

“Traffickable quantity” includes a drug that is not contained or mixed with another substance. This allows for the calculation of a traffickable quantity for a drug (specified in column 1 of part 3 of schedule 11), either on the quantity specified in column 3 or column 3A.

Narcotic plants

The most common narcotic plant is cannabis. The traffickable weight for cannabis is 250 grams or 10 plants. The weight refers to fresh or dried cannabis and comprises all parts of the plant, including flower tops, leaves, stalks, stems, roots and seeds. The traffickable weight for the opium plant is 100 grams or 50 plants, while for the coca plant it is 800 grams.

The traffickable quantity of substances containing THC, such as hashish or hash oil, is 25 grams. This amount is a mixed amount, so the proportion of THC to other substances is irrelevant.

Note that the weight of cannabis reduces significantly once dried. If cannabis was weighed by a police botanist while fresh or just cut, its weight may make out a commercial quantity when a subsequent weighing, once the plant has lost its moisture, may be under the threshold. An accused is entitled to contest a police botanist’s certificate and have the court order that the cannabis be made available to a defence-appointed botanist (seeCertificate of analysis“).

Other drugs

Drugs in powder form are no longer weighed in pure amounts. The relevant weight is now the weight of the whole mixture, including substances other than the drug. The following table shows the traffickable quantities of common drugs, where the weight is measured in mixed amounts.

Traffickable quantities of common drugs: mixed weight

Drug

Traffickable quantity:
mixed amount

Amphetamine

3 g

Cocaine

3 g

Heroin

3 g

LSD

150 mg

MDMA (ecstasy)

3 g

Recent amendments to the DPCSA have added synthetic cannabis and other synthetic substances ““ such as 4-MMC (also known as mephedrone or “˜meow meow’), BZP, 1,4-BD, GBL and MDPV ““ to schedule 11. The complete list of drugs and traffickable quantities of drugs weighed in mixed amounts is found in schedule 11, part 3, column 3 of the DPCSA.

The following table shows the traffickable quantities of common drugs where the weight is measured in pure amounts.

Traffickable quantities of common drugs: pure weight

Drug

Traffickable quantity: pure weight

Barbiturates

50.0 g

Mescaline

7.5 g

Methadone

2.0 g

Magic mushroom (psilocybin)

0.1 g

The complete list of drugs and traffickable quantities of drugs weighed in pure amounts is found in schedule 11, part 1, column 3 of the DPCSA. Part 2, column 3 lists a traffickable quantity of cannabis as 250 grams or 10 plants.

Commercial quantity

A commercial quantity is defined in section 70(1). Anyone found guilty of trafficking a commercial quantity is liable to very severe penalties (seeSummary of penalties“).

In Director of Public Prosecutions Reference No 1 of 2004; R v Nguyen [2005] VSCA 172, the court held that in order to prove the offence of trafficking a commercial quantity it must be proved by the prosecution beyond reasonable doubt that “the accused knew or believed that it was, or was likely” that “the amount in question was not less than a commercial quantity”. (See also R v Van Xuan Bui [2005] VSCA 300.)

When measuring the weight of the illegal substance in order to determine whether the weight amounts to a commercial quantity, it may be appropriate to distinguish between that which is for the possessor’s own use and that which the possessor has for sale to others. (This comment by Justices Crockett and Philips in R v Kardogeros [1991] 1 VR 269 was probably made obiter dictum, which means it is not a binding precedent.)

It is not appropriate to distinguish between that amount of the substance that is usable and that which is unusable (R v Kardogeros, above). In that case, the accused was convicted of having a commercial quantity of cannabis (150 kg) even though 80 kg was allegedly unusable material (e.g. stalks). (See also R v Torrisi [1998] VSCA 21.)

Commercial quantities of some common drugs are shown in the table below. The complete list of commercial quantities is found in schedule 11, parts 1, 2 and 3, column 2, and in part 3, column 2A of the DPCSA.

Commercial quantities of common drugs: mixed and pure weights

DrugCommercial quantity: mixed weightCommercial quantity: pure weight
THC10 kg1 kg
Cannabis25 kg (or 100 plants)
Heroin500 g250 g
Amphetamine500 g100 g
Barbiturates, cocaine, etc.500 g250 g
LSD50 mg
MDA500 g100 g

Large commercial quantity

Trafficking large commercial quantities carry very severe penalties. The complete list of large commercial quantities is found in schedule 11, parts 2 and 3, column 1A of the DPCSA. The maximum penalty is life imprisonment and a fine of up to 5,000 pu (s 71).

Aggregated quantities

A commercial quantity or large commercial quantity can be comprised of an aggregate of two or more drugs of dependence, where the quantity of each drug alone does not amount to a commercial or large commercial quantity.

Aggregated quantities can include a “dilute” drug, that is, a drug contained in or mixed with another substance. Section 70 of the DPCSA explains how the quantity of each substance is made into a fraction and added together.

Other state offences

The following is a brief summary of some other offences under the DPCSA. It is an offence to:

  1. introduce a drug into the body of another person (s 74);
  2. forge a prescription for a drug (s 77);
  3. make a false representation to obtain:
    1. a drug from an authorised person;
    2. a medical prescription for a drug;
    3. an injection of a drug by a doctor; and
    4. the filling of a prescription (s 78);
  4. conspire to commit an offence. It is a conspiracy to agree with another person to commit any of the offences in part V of the DPCSA. The offence of conspiracy is completed at the time the agreement is made. If the agreed offence is committed then the conspiracy is regarded as having merged with the agreed offence and the latter only should be charged (s 79);
  5. aid, abet, counsel, procure, solicit or incite the commission of an offence under part V of the DPCSA. Incitement includes inducement, encouragement and authorisation (s 80);
  6. attempt to commit the offences in sections 71″“75, 77, 78. An attempt to commit an offence carries the same penalty as the principal offence, and generally requires:
    1. the intent to commit the principal offence, and
    2. an act furthering the intent which is sufficiently close to the offence intended;
  7. conspire, aid, abet (etc.) in Victoria to commit any offence outside Victoria, generally speaking (s 80(3));
  8. do a preparatory act in Victoria for the commission of an offence outside Victoria (s 80(4));
  9. traffick to a child a non-commercial quantity of a drug (s 71AB);
  10. supply a drug of dependence to a child. The term “supply” is broad enough to include those circumstances where the drug is simply given to the child or is bought for the child and then given to the child without profit being made. This charge also applies if the supplier is a child. It is a defence if the person supplying the drug to the child believes on reasonable grounds that the child is 18 years of age or more (s 71B);
  11. possess a substance or material, or documents or equipment for trafficking a drug of dependence. This includes documents relating to the preparation, cultivation or manufacture of a drug. However, for a person to be found guilty of the offence, it must be proven that they possessed the relevant item with the intention of ultimately trafficking the drug (s 71A);
  12. possess a tablet press without lawful excuse. This is an indictable offence that carries a maximum penalty of five years imprisonment, or a fine of up to 600 pu, or both (s 71C); and
  13. possess a prescribed precursor chemical in a quantity that is not less than the prescribed quantity applicable to that precursor chemical. This is an indictable offence that carries a maximum penalty of five years imprisonment, or a fine of up to 600 pu, or both (s 71D).

See the table for a list of penalties for the most common drug offences.