This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Possession Of Drugs Of Dependence (Vic)
In Victoria, the maximum penalty for possession of a drug of dependence depends on the quantity and type of drug possessed. The offence is governed by the Drugs, Poisons and Controlled Substances Act 1981.
Under the act, if the drug possessed is less than 50g of cannabis and a Magistrate does not consider it to be for trafficking purposes, the maximum penalty is a fine of up to 5 penalty units.
If the charge relates to any other type of a drug of dependence or more than 50g of cannabis and the court is satisfied that the accused did not possess the drug for trafficking purposes, the maximum penalty is a fine of up to 30 penalty units or one year’s imprisonment.
If the court is satisfied that the possession of the drug of dependence was for trafficking purposes, the maximum penalty is a fine of up to 400 penalty units or five years’ imprisonment.
The Offence of Possession of a Drug of Dependence
The Offence of Possession of a Drug of Dependence is contained in section 73 of the Drugs, Poisons and Controlled Substances Act 1981 which states:
‘A person who without being authorised or licensed under this Act…has or attempts to have in his possession a drug of dependence, is guilty of an indictable offence.’
What is a drug of dependence?
A ‘drug of dependence’ is listed in Schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981. The definition includes any form of drug listed in the Schedule, as well as the salts, analogues, derivatives and isomers of that drug. In addition, a drug in the same class as one listed in the Schedule or contained in or mixed with another substance would also be considered a drug of dependence under section 73.
What is possession?
For the purposes of a drug possession offence, section 5 of the Drugs, Poisons and Controlled Substances Act 1981 states that unless you can prove otherwise, you will be deemed to have in your possession any substance that is:
- On land or premises occupied or used by you; or
- Used, enjoyed or controlled by you.
You can also be found to have a drug of dependence in your possession if it is in your custody or control and you intended to possess it.
What Actions Might Constitute Possession of a Drug of Dependence?
- Storing a drug of dependence in a locker to which you have the only key;
- Having a drug of dependence in your pocket;
- Having a drug of dependence in a car of which you are the registered owner.
What the Police Must Prove
To convict a person of possession of a drug of dependence, the prosecution must prove each of the following elements beyond a reasonable doubt:
- They had the substance in your possession; and
- The substance was a drug of dependence.
Possible Defences for Possession of a Drug of Dependence
Possible defences to a charge of possession of a drug of dependence are:
- The accused is licenced or authorized to possess or use the drug under the Access to Medicinal Cannabis Act 2016;
- Acting in accordance with a licence or permit granted by the Secretary of the Department of Health and Human Services if you are, for example, a registered health practitioner;
- A person to whom the prohibited drug has been lawfully prescribed or supplied to; or
- A person who:
- Has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and
- Had the prohibited drug in your possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply;
Which Court Will Hear Your Matter?
Depending on the quantity of the drug of dependence found in the Accused’s possession, and whether a Magistrate is satisfied that it was possessed for the purposes of trafficking or not, this charge may be heard in either the Magistrates’ Court of Victoria or the County Court of Victoria.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.