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)).

The Victoria Police and the Victorian courts have introduced several alternative schemes to deal with drug offenders, some aimed at diverting people from the criminal justice system and others focused on rehabilitating those 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 the counselling referral might result in charges ultimately being laid.

There are a number of support programs available to assist people who have drug or alcohol dependence and are appearing before the Magistrates' Court.  

The Criminal Justice Diversion Program (see: "Diversion", under "Other orders" in Chapter 3*5 Sentencing in the Magistrates' Court) may also be relevant for first-time drug offenders. If the police informant consents to diversion, the Magistrate is satisfied that diversion is appropriate and the defendant "acknowledges responsibility" for the offence, the charges will be adjourned until after the defendant has participated in the diversion program. The defendant 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 defendant 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: Chapter 4*6 Criminal Records).

If the court is satisfied that:

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 which shifts the burden of proof (albeit on the balance of probabilities) to the accused.

Deemed possession includes situations where the defendant was:

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

Some other cases worth considering in relation to possession are:

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 (see: "Summary of penalties", below). 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 one year's imprisonment, or both (s.73(1)(b)).

For these two sentencing categories to apply the defendant must satisfy the court, on the balance of probabilities, that the possession was not for any purpose relating 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)).

If the prosecution proves:

then that is prima facie evidence (see: "Glossary") of trafficking (s.73(2)) (see: "Trafficking", below).

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) (see: "Summary of penalties", below).

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

The penalty for the cultivation of a commercial quantity of a narcotic plant is a maximum of 25 years imprisonment (s.72A). A fine of up to 3,000 pu may also be imposed. The prosecution must prove beyond reasonable doubt that 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 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.

This may be proved by:

Trafficking has elements of movement and commerce (see R v Holman [1982] VR 471, at 475 per Lush J, and compare D'Aloia v Brilliant (unreported, Hampel J, 19 June 1984).

Note: To make a gift is not trafficking.

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

The following may now constitute trafficking:

For trafficking offences of non-commercial quantities heard on indictment, the maximum penalty is a term of imprisonment of 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 a term of imprisonment of 20 years or a fine of up to 2,400 pu, or both (s.71AB).

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

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 defendant has given evidence, decide that the prosecution has not proven trafficking beyond reasonable doubt.

If the prosecution proves:

then that is prima facie evidence of trafficking.

This is one of the most common ways of charging and proving trafficking. Proof of occupancy of premises where the drugs were found (s.5) and proof of the identity of the drug and its quantity by certificate of analysis (s.120) is sufficient.

Possession is prima facie evidence of trafficking in the way or ways which 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).

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 relevant quantity maximum for each category of each drug is set out at Schedule 11 of the DPCSA. Part 1 of Schedule 11 contains the list of substances categorised by pure weight. Part 2 lists narcotic plants. Part 3 lists powders in pure and mixed maximum quantities.

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 defendant personally at least seven days before the hearing, or filed with the court not less than 10 days before the hearing. If the defendant 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 defendant or filed with the court within the requisite time, or once the defendant has given the appropriate notice for the attendance of the analyst or botanist (s.120(2)).

There must be evidence that the material which is 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 whom the drugs were passed to.

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. Evidence of market value of a drug is relevant in relation to penalty and may be indicative of whether the accused was trafficking or not. (See: R v Tsolacos (1995) 81 A Crim R 434.)

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 purposes 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).

In situations where the accused may have committed several separate acts each of which is, 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 in drugs over a period of time, making 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 R (1986) 24 A Crim R 112).

The very significant downside of this is that the court will regard the defendant as being in the "business of trafficking", with significant sentencing ramifications. If there are simply several separate incidents of trafficking, a Giretti count should not be accepted. This will, however, depend on the particular fact situation of the case.

In the absence of further evidence (i.e. evidence from the defence) prima facie proof may become conclusive proof and therefore be sufficient for conviction. Despite this, the burden of proof beyond reasonable doubt remains upon the prosecution at all times: the statutory provisions regarding prima facie proof simply make it easier for the prosecution to prove its case. (See: "Glossary" for definition of prima facie.)

The practical effect of these provisions is that the defendant will have to give sworn evidence in order to rebut the presumption.

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.

The defence of entrapment as recognised by the United States authorities is not part of the law of Victoria: R v Papoulias [1988] VR 858. In that case the defendant was convicted of trafficking in 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.)

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 shall be refused bail unless "exceptional circumstances" exist to justify the grant of bail (s.4(2)(aa)). (See: Chapter 3*3 Bail.)

Participation in the CREDIT/Bail Support Program can assist in satisfying the court that a person is not an unreasonable risk of re-offending because they are willing to address their drug problem. However, formally, a person cannot participate in CREDIT 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. See: "CREDIT/Bail Support Program", above.

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, and the Magistrate must be satisfied that there are reasonable grounds for the belief before granting the warrant.

The warrant may authorise entry onto specified premises (if necessary by force) and search of those premises and of 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 the report made by the officer who executed the warrant (s.81(5)).

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). Section 83 deals with forfeiture and destruction of seized drugs or devices before conviction.

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 that may be used to effect an escape or to injure themself or another person.

Police also have additional powers of search and seizure in relation to volatile substances, set out in Division 2 of Part IV of the DPCSA.

The provisions are intended "to protect the health and welfare of persons under 18 years of age" engaged in inhaling volatile substances (commonly known as "chroming") and give police powers to search, seize and detain people under 18. Significantly, these laws do not make it an offence to possess or inhale volatile substances.

The provisions seek to facilitate the on-the-spot surrender of substances and items used for "chroming". The powers of detention can only be used to remove individuals from potentially dangerous situations of self-inflicted harm. Police must have regard to the "best interests" of any child who is subject to any of these powers (s.60B DPCSA). As property may be seized that is not actually prohibited, the legislation also makes provision for the return of such property.

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 use, possess or cultivate cannabis, or use or possess 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 (see above) 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 and the 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 use, possess or cultivate offender a bond. The Magistrate must have regard to the defendant's character and prior criminal history as well as to "all the circumstances" and the "public interest". A common reason for refusing a bond is that the defendant 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, to make 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: Chapter 4*6 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 of the 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.

A combined custody and treatment order (CCTO) may be made where the court is satisfied that drunkenness or drug addiction contributed to the commission of an offence and the court is considering a sentence of imprisonment of not more than 12 months. A pre-sentence report must be ordered by the court prior to it making a CCTO.

Section 18Q of the Sentencing Act requires the sentenced person to serve at least six months in prison before being eligible to complete the remainder of the sentence in the community while undergoing treatment for alcohol or drug addiction. Anyone who breaches the conditions of the community portion of an order will get no credit for any of the time served in the community and must then serve the whole portion of the community order in custody (s.18W(5)(b)).

Home detention orders involve the detention of an offender in their own home (or the home of suitable friends or relatives), under strict conditions and supervision. These orders were previously provided for by section 18ZT of the Sentencing Act and were an alternative way of serving a sentence of imprisonment. However, as a result of recent amendments, from 1 July 2010 home detention orders are no longer treated as a sentence of imprisonment, but are instead treated as a sentence in their own right. This means that a court is not required to sentence an offender to a term of imprisonment before considering whether to order that it be served by way of home detention rather than in jail.

In addition, these reforms also significantly broaden the eligibility of offenders for home detention orders. From 1 July 2010, new section 26N of the Sentencing Act provides for the circumstances in which a person will be eligible for a home detention order. Amongst other things, these reforms mean that in certain circumstances, an offender who has committed serious drug offences may still be eligible for home detention.

A serious drug offender is a person other than a young offender (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.

Drug offences for the purposes of describing a person as a serious drug offender mean offences listed in clause 4 of Schedule 1 of the Sentencing Act. The offences listed in the Schedule each require that the offence relate to an amount of the drug not less than the commercial quantity where the offence is a DPCSA offence, or "marketable" or "commercial" quantities where the offence is a Criminal Code offence (see: "The Commonwealth Criminal Code", below).

The effect on sentencing of finding that a person is a serious drug offender is that it allows the court to sentence the person 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, while "significant" drug offences are trafficking in a large commercial quantity of a drug of dependence (s.71 DPCSA) or trafficking in a commercial quantity of a drug of dependence (s.71AA DPCSA).

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 which 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, see: "Drug treatment order", in Chapter 3*5 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.