Legislation
An individual can be charged with a drug offence under either State or Commonwealth law. In Victoria, there are to key legislative provisions that we must refer to, including:
- The Misuse of Drugs Act 1971 (Cth),
- The Drugs, Poisons and Controlled Substances Act 1981 (Drugs Act), and
- Commonwealth drug offences are provided under the Criminal Code Act 1995 (Cth).
Section 4 and section 5(3) of the Misuse of Drugs Act 1971 (Cth), states that it is illegal for an individual to have a controlled drug(s) in their possession, whether lawfully or not, with the intention to supply it to another individual or individuals who has no legal right to possess it.
Usually when an accused person is charged with a Commonwealth drugs offence this is as a result of an attempted or actual importation of a drug of dependence detected through the post or at the Australian borders. Those cases are enforced either through the Australian Federal Police (AFP) or in co-operation with Victoria Police.
Types of Charges
There are diverse groups of drug offences, including Use, Possession, Trafficking, Cultivation, Manufacturing and Importing of drugs. Typical drugs used, include Cocaine, Cannabis, Heroin, GHB, Ketamine, LSD and Methamphetamine. Regarding drug offences in Victoria, ‘use’ means consuming a drug or getting it into your body. An individual ‘Possesses’ a drug if they knowingly have physical control or custody of it.
Possession includes where drugs are on land or premises occupied by the possessor, or in any location that is used, enjoyed or controlled. ‘Trafficking’ drugs means selling, manufacturing, possessing and offering the drug for sale. In Victoria, drug trafficking offences are determined contingent on the amount of drugs trafficked or the amount that the offender possesses at the time of detection by police.
There are four (4) trafficking offences under the Drugs, Poisons and Controlled Substances Act 1981 (Drugs Act), including: trafficking a drug of dependence (least serious type of trafficking a drug), trafficking a drug of dependence to children, trafficking a drug of dependence in a commercial quantity and trafficking a drug of dependence in a large commercial quantity. It is an offence to ‘Cultivate’ drugs, including seeds or a cutting of a plant.
The penalty for drug offences vary significantly and depends on the seriousness of the crime. Less significant drug offences are managed in the Magistrates Court of Victoria. Examples include an individual being arrested who is found to be in possession of a trafficable amount of drugs. Depending on the situation, a sentence can vary from a diversion to good behaviour bonds up to imprisonment. Sentences increase in duration for more serious offences including the degree of sophistication or for re-occurring offending. The most prevalent penalty for trafficking drugs within the Magistrates Court is a Community Corrections Order, with court-ordered drug treatment and voluntary community work.
Serious examples of drug offences are heard in the higher courts, including the Supreme Court of Victoria. These instances are typically dealt with way of long jail sentences. The quantity of drugs, i.e., seized is not always the determinative factor in assessing the seriousness of a trafficking offence. To understand when a drug offence may be heard in the lower Courts such as the Magistrates Court, please see link on indictable offences heard summarily.
The sentencing process for drug offences can often be quite thorough and includes many factors. This is known as the sentencing synthesis. The sentence of an accused person may include their individual’s personal circumstances and, the maximum penalties provided by law compared to the current sentencing practices for a particular fact pattern. An accused persons criminal record for relevant offending may aggravate the ultimate sentence. An individual with no prior criminal history might be eligible to have their case managed via a ‘diversion program’ depending on the seriousness. For first time offenders caught possessing drugs of dependence for personal use, the Victorian Police have the discretion of issuing a caution. This means that no charges are laid on the condition that the accused person attends a drug related counselling program. In this case, a first time offender will avoid a criminal record. Police may issue a maximum of two (2) cautions. To obtain a caution:
– The individual must prove that the drug offence occurred,
-The drugs should only have been possessed for individual use,
– Police should be satisfied that the individual was either using or in possession of an illicit substance,
– The overall quantity of drug(s) must be a small amount as laid out in the Drugs, Poisons and Controlled Substances Act 1981 (Drugs Act),
– The individual should participate in a clinical assessment and begin a drug treatment program within five (5) working days of initially being given the caution.
First time drug offenders who have their cases heard in the Magistrates Court ordinarily do not go to jail, due to the Victorian sentencing law which provides that a jail sentence should only be imposed as a last resort. In more sophisticated drug cases, the Police might seize monetary sums and take assets believed to be proceeds of the offence. Offenders must be mindful that if they intend to plead guilty to their drug offence, there might be flow on consequences to their assets which needs to be considered.
The maximum penalty for cultivating drugs related to trafficking is fifteen (15) years imprisonment. The maximum penalty for cultivating commercial amounts of drugs is twenty-five (25) years imprisonment. The maximum penalty for a large commercial quantity of drugs includes a fine of five-thousand (5000) penalty units and/or life imprisonment.
