Victorian law

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 a serious term 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. This decision 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 are dependent on drugs or alcohol 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.

CREDIT/Bail Support Program

Tel: 9628 7975; 9628 7936

Web: www.magistratescourt.vic.gov.au

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 operates at the Magistrates’ Courts in Melbourne, Sunshine and the La Trobe Valley);

their charges or history indicate that support is required to reduce the likelihood of them reoffending;

they have a physical or mental disability or illness;

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.

CISP

Tel: 9628 7975; 9628 7936

Web: www.magistratescourt.vic.gov.au

CISP Remand Outreach Pilot (CROP)

CROP is an extension of CISP into prisons that accommodate prisoners on remand. CISP assessment and liaison officers (CALOS) proactively identify remand prisoners who may be eligible for bail if appropriate community supports are put in place. CALOS are located at the Melbourne Assessment Prison, Metropolitan Remand Centre and the Dame Phyllis Frost Centre. CROP is also provided to the Port Phillip Prison as required.

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 placed in one of the programs, a clinician arranges for the person to be assessed. Suitable treatment (provided by various support agencies) is arranged. If drug dependence is a problem, the clinician arranges treatment at an accredited drug treatment agency. Once a person is part of CREDIT 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.

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 www.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 (see Fox v Warde [1978] VR 362; 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 section 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] HCA 57; and

R v Clare (1993) 72 A Crim R 357.

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”).

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”, 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

Drug

Commercial quantity:
mixed weight

Commercial quantity:
pure weight

THC

10 kg

1 kg

Cannabis

25 kg (or 100 plants)

Heroin

500 g

250 g

Amphetamine

500 g

100 g

Barbiturates, cocaine, etc.

500 g

250 g

LSD

50 mg

MDA

500 g

100 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). Recent Sentencing Act reforms to introduce “baseline sentences” include this offence; the baseline sentence for trafficking large commercial quantities of drugs is 14 years imprisonment.

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:

aa drug from an authorised person;

ba medical prescription for a drug;

can injection of a drug by a doctor; and

dthe 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 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:

athe intent to commit the principal offence, and

ban 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 “Maximum penalties for state drug offences” table.

General issues about state drug offences

Certificate of analysis

In all drug offences, the prosecution is required to prove the identity of the drug involved (and the quantity of the drug). This is normally done by the production of an analyst’s certificate. Section 120 of the DPCSA provides that an analyst’s or botanist’s certificate as to the identity and quantity of the drug is usually sufficient evidence to prove quantity and identity. (However, if these matters are disputed by the accused, the analyst or botanist will usually be called to give evidence.)

The certificate must be served on the accused personally at least seven days before the hearing, or filed with the court not less than 10 days before the hearing. If the accused objects to the certificate and wishes the analyst or botanist to give evidence, notice must be given at least three days before the hearing to the informant and the analyst or botanist (s 120).

The certificate of analysis is not evidence of the identity and quantity of the drug if it has not been served on the accused or filed with the court within the requisite time, or once the accused has given the appropriate notice for the attendance of the analyst or botanist (s 120(2)).

There must be evidence that the material allegedly seized from an accused is the same material in respect of which a certificate of analysis is provided (R v Joseph Daniels (unreported, VSC, Phillips CJ, 11 May 1992)). This requires the prosecution to establish the chain of “continuity”. This is usually done by evidence being given by the various persons who handled the drugs as to who the drugs were passed to.

Market value

Section 122A of the DPCSA provides that evidence may be given by persons with certain experience as to the market (or “street”) value of a drug. This evidence will be conclusive unless contrary evidence is provided. The market value of a drug is relevant as it relates to the penalty imposed, and may be indicative of whether or not the accused was trafficking (see R v Tsolacos (1995) 81 A Crim R 434).

Duplicity

Where more than one charge is laid arising out of the same facts, section 51 of the Interpretation of Legislation Act 1984 (Vic) prohibits punishment more than once for the same act or omission. In addition, the Victorian Supreme Court ruled in Reardon v Baker [1987] VR 877 that where a person is found guilty of trafficking because of being in possession of drugs for the purpose of sale, that person should not also be convicted of possession of those drugs; to do otherwise places the person in double jeopardy for what really constitutes one illegal act (see also R v Chhom Nor [2005] VSCA 46).

Between dates count

In situations where the accused may have committed several separate acts (each, by itself, a separate offence), the prosecution may choose to charge one offence to cover all the separate acts. This is known as a “between dates” or “Giretti” count. This is usually the case where the accused trafficks drugs over a period of time, and makes numerous individual sales of the drug. It is appropriate to view this as one continuous offence occurring over a period of time and charge the accused with only one count of trafficking (see Giretti v The Queen (1986) 24 A Crim R 112).

The significant downside of this is that the court will regard the accused as being in the “business of trafficking”, with significant sentencing ramifications. If there are only several separate incidents of trafficking, a Giretti count should not be accepted. This will, however, depend on the particular facts of the case.

Defence to prima facie case

In the absence of further evidence (i.e. evidence from the defence), prima facie evidence may become conclusive proof. Therefore, a person can be convicted based on prima facie evidence. Despite this, the burden of proof beyond reasonable doubt remains upon the prosecution at all times; the statutory provisions regarding prima facie evidence simply make it easier for the prosecution to prove its case.

The practical effect of these provisions is that the accused has to give sworn evidence in order to rebut the presumption that they’re guilty.

Evidence of other witnesses may also be useful. The defence evidence would usually be a denial of trafficking and/or intent to traffic and an explanation for possession or cultivation. The most common explanation is that the drugs were for personal use.

Entrapment

The defence of entrapment, as recognised by USA authorities, is not part of the law of Victoria (R v Papoulias [1988] VR 858). In that case the accused was convicted of trafficking heroin on the evidence of undercover police officers, to whom he had sold heroin on a number of different occasions. As section 50 of the DPCSA permits police (provided they have been appropriately authorised) to handle drugs without such handling being an illegal act, there was no basis to exclude the police evidence. (Also see R v Te [1998] 3 VR 566; (1997) 97 A Crim R 386.)

Bail

Persons charged with trafficking or cultivation lose the presumption of a right to bail and the burden is on them to show the court that their detention in custody is not justified (s 4(4)(ca) Bail Act 1977 (Vic) (“Bail Act”). In addition, where a person has been charged with trafficking or importing drugs in large amounts as specified in the Bail Act, that person will be refused bail unless “exceptional circumstances” exist to justify the grant of bail (s 4(2)(aa)) (see How bail works).

Participation in the CREDIT/Bail Support Program can assist in satisfying the court that a person is not an unacceptable risk of re-offending because they are willing to address their drug problem. However, formally, a person cannot participate in the CREDIT program unless bail would have been granted anyway. In practice, if the person has already been assessed as suitable for the CREDIT program, this can be a persuasive factor for a court considering an application for bail (seeCREDIT/Bail Support Program”).

Search and forfeiture

Search with warrant

A warrant to search premises for drugs or for evidence of the commission of drug offences can be obtained from a magistrate by a member of the police force over a particular rank (s 81 DPCSA). A search warrant directed to a named member of the police force may be executed by any member of the police force (s 81(1AA)). Evidence is required of the grounds for the belief that there are drugs on the premises or that drug offences are being committed. The magistrate must be satisfied that there are reasonable grounds for the belief before granting the warrant.

The warrant may authorise police to enter specified premises (if necessary by force) and to search those premises and any persons or vehicles found there.

The police officer who executes the warrant must lodge with the Magistrates’ Court nearest the premises a signed written report giving particulars of all searches, persons arrested and things and documents seized and carried away (s 81(4)). An arrested person or the owner or occupier of the premises may apply to the court for an order to inspect this report (s 81(5)).

Search without warrant (stop and search)

Police may search any person or vehicle in a public place if there are reasonable grounds for suspecting the presence of drugs. Drugs or devices used in the manufacture, sale or use of any drug may be seized and carried away. Property seized may be subject to forfeiture (s 82 DPCSA). Section 83 deals with forfeiture and the destruction of seized drugs or devices before conviction.

Common law search of the person

At common law, police have the power to search a person who has been taken into custody if there are reasonable grounds for believing that they are concealing on their person items that may be evidence of the commission of an offence (for example, drugs), or items that may be used to effect an escape or to injure themself or another person.

Volatile substances search

Police have additional powers to search for and seize volatile substances (div 2 pt IV DPCSA). These provisions are intended “to protect the health and welfare of persons under 18 years of age” who are engaged in inhaling volatile substances (commonly known as “chroming”). Police must consider the “best interests” of any person under 18 years of age who is subject to any of these powers (s 60B DPCSA). Significantly, these laws do not make it an offence to possess or inhale volatile substances.

Search and seizure of volatile substances

The DPCSA facilitates the on-the-spot search for and surrender of substances and items used for chroming. So, the police may, without warrant, search a person, or search things in that person’s possession or control, for a volatile substance or an item used to inhale a volatile substance (s 60E); such substances and items can be seized by the police.

To conduct such a search, the police must reasonably suspect the person is:

under 18 years of age;

in possession of, or control of, a volatile substance or an item used to inhale a volatile substance; and

inhaling or going to inhale the substance.

The powers to search (s 60F) and seize (s 60J) extend to persons of any age if the police reasonably suspect a person intends to provide a volatile substance or an item to a person under 18 to inhale or use to inhale.

Sections 60G and 60H detail the procedure for conducting a search. This includes the requirement that police inform a person that it is not an offence to possess a volatile substance or item used to inhale, but that police have the power to search for and seize such items and may use reasonable force to do so. Police must ask a person to produce any such substances or items they have in their possession. Police officers must also provide their name, rank and place of duty, in writing if requested (s 60G).

When a search uncovers a volatile substance or an item used to inhale a volatile substance, before seizing the substance or item police must ask the person searched why they possess it (s 60I). This is intended to assist police in deciding whether there are reasonable grounds for seizure.

Police do not need to comply with the requirements in sections 60H–I if they believe on reasonable grounds that the person will not understand because of intoxication or because it is otherwise impractical to comply with these requirements.

Apprehension and detention

Police may apprehend and detain a person if they reasonably believe the person is under 18 and is inhaling or has recently inhaled a volatile substance and is likely by act or neglect to cause immediate serious bodily harm to themself or some other person (s 60L). There is no requirement that a search be conducted first or that substances or items be seized or handed over. Police must, if possible, inform a detained person that they have not been arrested for an offence but that they are being detained to prevent them from harming themself or others.

A person detained under section 60L of the DPCSA must be released immediately if found not to be under 18 years of age, or when police no longer have grounds for believing that person recently inhaled a volatile substance or will cause immediate serious bodily harm to themself or others (s 60M). A detained person must, as soon as practicable, be released into the care of a person who police reasonably believe is suitable to take care of the detained person and who consents to taking care of them (e.g. a parent, guardian or other adult family member, or an employee of an appropriate health or welfare agency). Police have a wide discretion on this point to respond appropriately to a variety of circumstances.

If police have taken reasonable steps to do so but have been unable to release a person into the care of another suitable person, they may continue to detain the person unless grounds for detention no longer exist. A person detained under section 60L of the DPCSA must not be detained in a police jail, cell or lock-up (s 60M(6)). Police may not interview or question a detained person in relation to any known or alleged offence during this detention (s 60M(7)).

Return of property and police recordkeeping

As property may be seized that is not actually prohibited, the DPCSA also makes provision for the return of such property. Police must inform the person from whom property was received or seized that they have the right to have it returned (s 60N). The person from whom the property was seized or received may apply to have the property returned at the relevant police officer’s place of duty within seven days of the receiving or seizure. However, property can only be returned to a person under 18 years of age if accompanied by a parent or guardian.

Police have the power to dispose of or make safe any received or seized property if it is a risk to health or safety (s 60O). Any property not returned within seven days is forfeited to the Crown (s 60P). Police must make a written record, with prescribed particulars, of searches, receipts or seizures of property, apprehensions and detentions, and the disposal or making safe of such property (s 60Q).

A person subject to these police powers may, within one year of the relevant action, request a copy of the record of action (s 60R).

Jurisdiction

There are two types of hearing process:

1 summary hearing: a final determination before a magistrate with a right of appeal to a County Court judge; and

2 indictable hearing: a trial or indictment before a County or Supreme Court judge and jury, generally following a committal proceeding.

(See Which court for which crime?, for an explanation of hearings.)

Most state offences can be heard indictably or summarily, but some can only be heard summarily, and some only indictably.

Summary of penalties

The DPCSA imposes a complex structure of penalties. The penalty imposed depends on the quantity of the drug, the purpose of possession and the nature of the substance. Penalties also vary according to the jurisdiction in which the offence is tried. The range of penalties for a particular offence can only be determined by carefully examining the DPCSA and other relevant legislation. See the “Maximum penalties for state drug offences” table; it is important to note that the penalties listed in this table are maximum, not mandatory, penalties.

The penalties for indictable offences are listed in the section of the relevant Act that creates the offence. The penalties for indictable offences heard summarily are determined by sections 112A and 113 of the Sentencing Act 1991 (Vic) (“Sentencing Act”). These provisions respectively limit the penalties that a magistrate may impose for a single offence to a fine of 500 pu and two years imprisonment.

The Sentencing Act provides for, in decreasing order of severity:

prison sentences;

drug treatment orders;

suspended prison sentences;

detention in a youth training centre (for young people);

community correction orders (with or without conviction);

fines (with or without conviction);

adjourned undertakings – also known as “good behaviour bonds” (with or without conviction); and

charges proven and dismissed without penalty.

Some of these penalties can have conditions attached to them, requiring assessment, supervision and treatment for drug or alcohol addiction. Such conditions can only be attached if the offender agrees to comply with them. For details of penalties, see Sentencing in the Magistrates’ Court.

Section 76 DPCSA bonds

We use the term “bond” or “good behaviour bond” for convenience, because most people are more familiar with that terminology. This sentencing option is more precisely described, however, as an “adjournment without conviction”, subject to the giving of certain undertakings to the court by the offender.

For first-time drug offenders charged with the use, possession or cultivation of cannabis, or the use or possession of any drug found in part 3 of schedule 11 (most “street drugs”), there is a presumption in favour of receiving a good behaviour bond under section 76 of the DPCSA. The charge must relate to “small quantities” only (seeQuantities”) for any drug other than cannabis, and the court must be satisfied that the drug was not possessed or cultivated for the purposes of trafficking.

A section 76 bond is available to a person charged with conspiracy (s 79) or aiding and abetting (s 80) the commission of any of the offences that come within the criteria.

Section 76 does not apply to a person who has a previous conviction under any of the Acts listed in section 76(1)(b). These Acts include certain parts of the historical Poisons Act 1962 (Vic) and the Public Health and Wellbeing Act 2008 (Vic) as well as related Acts in other states and territories of the Commonwealth, such as the Customs Act 1901 (Cth) (“Customs Act”) and the Criminal Code Act 1995 (Cth) (“Criminal Code”). Generally speaking, all drug-related offences are included in the list.

Since section 76 only excludes those previously “convicted” of a drug offence from obtaining a bond, it is presumably still possible for a person who has previously been found guilty of a drug offence (but not convicted), to receive a section 76 bond. Section 76(1)(b) provides that such a person would be excluded if they had “previously been dealt with under this section” (i.e. a person who has previously received a section 76 bond).

Under section 76(3), any previous convictions under the Children, Youth and Families Act 2005 (Vic) or corresponding state or Commonwealth Acts are to be disregarded for the purposes of determining prior drug convictions under section 76(1)(b).

Section 76 still applies if a person has received a caution or, presumably, diversion. Provided the criteria for giving a bond are met, a magistrate must state reasons if they choose not to give a first-time offender (of use, possession or cultivation) a bond. The magistrate must also consider the accused’s character and prior criminal history as well as “all the circumstances” and the “public interest”. A common reason for refusing a bond is that the accused has indicated that they do not intend to stop using cannabis. This is effectively refusing to give an undertaking to be of good behaviour.

The advantages of a bond are that no conviction is recorded and there is no penalty (except perhaps a payment to the Magistrates’ Court fund). Most people would strongly wish to avoid a drug conviction. This is particularly important for those who wish to travel overseas, as any drug-related conviction will make it difficult to enter a number of countries (see Understanding criminal records). Where a section 76 bond is given for an offence involving a drug other than cannabis, the bond must include a condition that the offender undertakes to complete an approved drug education and information program.

Section 76 is additional to the general adjournment without conviction provisions (now in s 75 Sentencing Act) and does not preclude the granting of a bond in situations to which section 76 does not apply, for example, a second offence.

Maximum penalties for state drug offences

Offence

Jurisdiction

Penalty
section

Imprisonment
(years)

Fine
(penalty units)

Use

Cannabis

Summary

75(a)

5

Other drug

Summary

75(b)

1

30

Possession

Cannabis not
related to
trafficking

Indictable, triable
summarily (“TS”)

73(1)(a)

5

Other drug not
related to
trafficking

Indictable, TS

73(1)(b)

1

30

Other possession

Indictable, TS

73(1)(c)

5

400

Cultivation

Not related
to trafficking

Indictable, TS

72B(a)

1

20

Other

Indictable, TS

72B(b)

15

1800

Commercial
quantity

Indictable

72A

25

3000

Large commercial
quantity

Indictable

72

Life

5000

Trafficking

Large commercial
quantity

Indictable

71

Life

5000

Commercial quantity

Indictable

71AA

25

3000

Other quantity

Indictable, TS

71AC

15

1800

Supply of drug to
a child

Indictable, TS

71B

15

1000

Trafficking to a child
of a non-commercial
quantity of a drug

Indictable, TS

71AB

20

2400

Conspiracy to

Traffic

Indictable, TS

79(1)

As for trafficking

Cultivate

Indictable, TS

79(1)

As for cultivation

Possess

Indictable, TS

79(1)

As for possession

Introduction of
a drug into the
body of another

Summary

74

1

30

Forging, altering,
or uttering prescription

Summary

78

1

20

False representation
to obtain drug,
injection or
prescription

Summary

78

1

20

Note that as with conspiracy, the offences of “aid” and “abet” carry the same maximum penalties as the substantive offence. For example, conspiracy to traffic a commercial quantity of heroin has a maximum penalty of 25 years of imprisonment and a fine.

Serious and significant drug offenders

A serious drug offender is a person other than a young offender (i.e. under the age of 21 at the time of sentencing) who has been convicted of a drug offence for which they have been sentenced to a term of imprisonment or detention in a youth training centre.

For a person to be described as a “serious drug offender”, they must have committed one of the offences listed in clause 4 of schedule 1 of the Sentencing Act. In addition, the offence must relate to an amount of the drug not less than the commercial quantity where the offence is a DPCSA offence, or a “marketable” or “commercial” quantity where the offence is a Criminal Code offence (seeThe Commonwealth Criminal Code”).

The court can sentence a serious drug offender to a term of imprisonment longer than the offence itself warrants. This is based on the principle that once a person is regarded as a serious offender the overriding concern in determining the sentence is the protection of the community.

In addition, recent amendments to the Sentencing Act mean that suspended sentences are not available to offenders who have committed a “serious offence” or a “significant offence” after 19 April 2011. “Serious” drug offences are defined above. “Significant” drug offences are trafficking a large commercial quantity of a drug of dependence (s 71 DPCSA) or trafficking a commercial quantity of a drug of dependence (s 71AA DPCSA).

The Drug Court

The Drug Court has a limited number of places and is available only for sentencing matters and only by referral from the Dandenong Magistrates’ Court. The Drug Court supervises some offenders with a drug problem by placing them on an order known as a drug treatment order (DTO) (s 18X Sentencing Act).

The order is designed for people who have committed drug-related offences (other than sexual offences or violent offences that cause injury) and are facing prison sentences. Typically, they will be people who have committed dishonesty offences such as burglary and theft.

If an offender is accepted into the program, a DTO will be made containing a custodial sentence that is not required to be served if various components of the individually tailored treatment program are complied with. Breaches of the order are sanctioned by short periods of imprisonment, with the offender still remaining on the order. The order focuses on drug reduction, lifestyle change and avoidance of offending rather than zero tolerance. However, further offending will likely see a cancellation of the order and the original custodial sentence imposed.

For further information, seeDrug treatment order”, in Sentencing in the Magistrates’ Court; contact the Drug Court (tel: 9767 1344); or go to the Magistrates’ Court website at www.magistratescourt.vic.gov.au.