Penalties and defences for marijuana possession depend upon the facts of the case
Cannabis is the botanical name for marijuana. The possession of cannabis is illegal in Victoria. If you are caught, whether you will be prosecuted and the potential penalties usually depend upon the amount in your possession.
Elements of the offence
To obtain a conviction, the prosecution must prove each of these elements beyond a reasonable doubt:
- A substance existed that was cannabis.
- The substance was possessed.
- You are the person who possessed it.
Chemical tests can usually identify a substance as cannabis. To possess cannabis, you must have it on your person or in your custody, or you must have the ability to control it.
Less than 50 grams
Any amount of cannabis is illegal to possess, but if you are caught with less than 50 grams the police can elect to send you to a diversion program. If that happens, you can avoid a criminal prosecution by attending an educational program. You can only do that twice. For a third offence of possession of a small quantity of cannabis, you will be referred for criminal prosecution.
Using cannabis is a separate offence. You can be prosecuted if the police catch you smoking cannabis. You can also be charged with that offence if you admit to the police that you were smoking marijuana. If the police ask you about drug use, it is in your interest to say nothing at all until you talk to a lawyer.
50 to 250 grams
You probably face a criminal charge if you are caught with more than 50 grams but less than 250 grams of cannabis. Unless the police have evidence that you were holding the drug so that you could sell it, the prosecution probably will be for possession of marijuana for your personal use. That is a less serious crime than trafficking or possession with the intent to sell the drug.
Your lawyer may be able to persuade the court to allow you to enter a diversion program even if you possessed more than 50 grams. That is more likely to happen if this is your first offence and there is no evidence that you meant to sell the drug.
More than 250 grams
If you possess more than 250 grams, you have a “trafficable quantity” of cannabis. That offence is more serious than possession of a lesser amount because the court will assume that you possessed the drug with the intent to sell it. The offence is even more serious if you possessed a “commercial quantity,” which is any amount over 25 kilograms.
You should talk to a lawyer about whether it is best to plead guilty or to contest the charge at a trial. Potential defences to the charge include:
- Mistaken identity
- You were near the cannabis but it was not yours
The substance was not cannabis
If you have no realistic defence, a lawyer can help you achieve the best outcome by negotiating with the prosecution or by persuading the court to be lenient.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.