The commonest offences in Victoria are the use of a drug of dependence, possessing a drug of dependence, the cultivating of a narcotic plant and the trafficking of a drug of dependence.
Under Victorian law, the term “drug” is a drug which brings about dependence. What is considered to be a drug of dependence is detailed in schedule 11 section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981 (DPCSA). Recently, amendments have been made to the DPCSA which now include synthetic cannabis as well as some other synthetic substances that are now listed as drugs of dependence.
The DPCSA has created a number of drug offences which include use, possession, cultivation, trafficking and conspiracy.
Under the DPCSA Section 70(1) the term “use” includes smoking, inhaling, or introducing into someone’s body a drug of dependence. Using a drug is a summary offence and using tetrahydrocannabinol (THC) or cannabis imposes a penalty of no more than 5 penalty points with no possibility of a jail term even if he or she is a repeat offender.
Apart from cannabis using, other drugs attract a fine not exceeding 30 penalty points or one year in jail, or in some cases both. Fortunately, for those caught using dependent drugs the police and courts in Victoria do not necessarily impose these penalties for first time drug use offenders.
If you are caught for the first time using heroin or cannabis you will normally receive a caution, which takes place at a police station. Attached to the caution is the demand to attend a drug treatment centre for counselling. If you fail to attend then a charge may be laid. This gives first time offenders a second chance and means a criminal conviction is avoided.
Possession of a drug under common law is defined as a situation in which you have physical control of the drug but other people are unable to have access to it. The prosecution has to find evidence that the accused knew about the presence of the drug. The penalty for possession of any drug if trafficking is not involved is 30 penalty points or a 12 month prison term, or both as laid out in s 73(1)(b) of the DPSCA.
If the court believes trafficking is taking place then the maximum penalty is a fine not exceeding 400 penalty points or a five year prison term or both. The elements for trafficking as laid out in the DPCSA Section 70(1) includes getting a drug of dependence ready for trafficking, making a drug of dependence, selling, offering for sale and having in one’s possession for sale. Trafficable quantities of common drugs of dependence are 3 grams in weight for amphetamine, heroin, cocaine and ecstasy and 150 mg for LSD.
Trafficking these small quantities does not attract high penalties but when a trafficker handles commercial quantities then the penalties are considerably higher. The commercial quantities for common dependent drugs are THC 10 kg, cannabis 25 kg, heroin 500 g, amphetamine 500 g, LSD 50 mg and ecstasy 500g. The maximum penalty for these commercial quantities is life imprisonment and 5,000 penalty points.
Drug laws in Victoria can become very complicated if you have been arrested for an alleged drug offence. The police are keen to get a conviction and courts rarely listen to defendants if a good drug solicitor is not present to argue on your behalf.