Drug Related Charges & Offences in Melbourne, Victoria
In Victoria, the majority of drug related offences are criminalised under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Drugs Act).
Minor drug charges are known as summary offences. Summary drug offences are dealt with in the Magistrates Court and can carry a maximum sentence of 2 years imprisonment. Serious indictable offences are heard in the County Court and can carry a maximum sentence of anywhere between 2 years imprisonment and life imprisonment.
The Drugs Act identifies two categories of illegal substances in Victoria:
- Poisons or controlled substances, which include medicinal drugs. These include medicines that can be possessed legally with a valid prescription such as benzodiazepines and anabolic steroids. It is illegal to possess a drug of dependence without a prescription.
- Drugs of Dependence: drugs that are illegal to possess unless an exemption has been granted, such as:
• Cannabis
• Cocaine
• Methamphetamine
• Heroin
• Some psychoactive substances such as LSD
Some other chemical substances, synthetic drugs and analogues of drugs are also included in the Drugs Act. An analogue of a drug is a substance that has been modified to be chemically similar to an existing drug.
The quantity that the accused possessed or trafficked at the time of arrest will partly determine the offence they are charged with and the subsequent penalty imposed (if found guilty). Depending on the weight of the illegal substances, the accused might be charged in relation to a small, trafficable, commercial or large commercial quantity. The greater the amount that is possessed or trafficked, the more significant the charge and applicable penalty.
The Criminal Code Act 1995 (Cth) is a Commonwealth law that legislates the most serious drug related offences in Australia. It details federal charges related to trafficking, cultivating, selling, manufacturing, importing, exporting and possessing commercial or marketable quantities of controlled drugs.
If you have been charged or are under investigation for a drug related offence, please contact Sher Criminal Lawyers immediately. Our team of defence experts specialises in drug matters and is here to help you. We have years of experience advising and representing clients before the Magistrates and County Courts of Victoria. Our criminal defence lawyers are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
Drug Use
Section 75 of the Drugs Act (Vic) criminalises the unauthorized or unlicensed use of drugs of dependence in Victoria.
A person is deemed to ‘use’ a drug of dependence if they consume the drug by way of:
- Smoking;
- Injecting;
- Inhaling;
- Swallowing; or
- Any other way of getting it into the body.
It is important to note that the legislation makes a distinction between the use of cannabis and the use of all other drugs of dependence. The use of cannabis carries a maximum penalty of 5 units. However, the use of any other drug of dependence carries a maximum penalty of 30 units or 1 years imprisonment or both. In Victoria, the value of one penalty unit is around $165.
Pleading or being found guilty of using a drug of dependence means that you are liable to receive a conviction on your criminal record.
Drug Possession
Several sections of the Drugs Act (Vic) pertain to the possession of drugs of dependence in Victoria, including:
- Unauthorised Possession of Poison or Controlled Substance (s36B)
- Possession of a Drug of Dependence (s73)
A person is deemed to ‘possess’ a drug of dependence if they are in custody or control of the drug. Further, the police must prove that the person knew that the drug was in their possession and intended to possess it.
Possession includes circumstances where the drugs are located:
- On the person;
- On the land, property or premises that the person occupies; or
- In any place that is used, enjoyed or controlled by the person.
The possession of a small quantity of cannabis (up to 50 grams) not for the purpose of trafficking carries a maximum penalty of 5 units.
The possession of a larger quantity of cannabis (greater than 50 grams) or any other drug of dependence carries a maximum penalty of 30 units or 1 years imprisonment or both.
If the Court is satisfied on the balance of probabilities that the possession of drugs was related to trafficking, a maximum penalty of 400 units or 5 years’ imprisonment or both can be imposed.
In Victoria, the value of one penalty unit is around $165.
Pleading or being found guilty of possessing a drug of dependence means that you are liable to receive a conviction on your criminal record.
Drug Cultivation
Several sections of the Drugs Act (Vic) pertain to the cultivation of narcotic plants in Victoria, including:
- Cultivation of Narcotic Plants (s72B)
- Cultivation of Narcotic Plants – Commercial Quantity (s72A)
- Cultivation of Narcotic Plants – Large Commercial Quantity (s72)
Under the Drugs Act, a narcotic plant includes the seeds and/or cuttings with or without roots.
Under the Act, narcotic plants might include but are not limited to:
- Cannabis;
- Certain types of opium poppy; and
- Certain types of coca plant.
The term “cultivate” is broadly defined and can include any of the following in regard to a narcotic plant:
- Sowing seeds
- Planting
- Growing
- Watering
- Nurturing
- Tending
- Grafting
- Dividing
- Transplanting
- Harvesting
- Picking Leaves
A person can be charged with cultivation if the narcotic plant is in their possession or on their property. However, under s72C of the Drugs Act, it is a defence if the person did not know or suspect (or could not reasonably have been expected to have known or suspected) that the plant being cultivated was classified as a narcotic.
The number of narcotic plants being cultivated will affect the penalty that the court imposes. The court may deem a small number of plants (generally less than 10) to be cultivated for personal use as opposed to being used in trafficking.
If the court deems that the narcotic plant is being cultivated for personal use, the maximum sentence that can be imposed is 1 years imprisonment or a fine of 20 penalty units or both.
However, if the court concludes that the narcotic plant is being cultivated for the purpose of trafficking, the maximum sentence that can be imposed is 15 years imprisonment.
In matters involving the cultivation of a commercial quantity of narcotic plants, the maximum sentence is 25 years imprisonment. And in matters involving large commercial quantities, the maximum sentence is life imprisonment and a fine of up to 5000 penalty units.
Pleading or being found guilty of cultivating a narcotic plant means that you are liable to receive a substantial penalty. The value of one penalty unit in Victoria is around $165.
It is vital that people accused of drug cultivation obtain expert legal advice before their police interview. The answers you provide during the interview can have a significant impact on the outcome of your matter.
Drug Manufacturing and Trafficking
Several sections of the Drugs Act (Vic) pertain to the manufacturing and trafficking of drugs of dependence in Victoria, including:
- Manufacture of Heroin etc. (s56)
- Trafficking in a Drug or Drugs of Dependence – Large Commercial Quantity (s71)
- Possession of Substance, Material, Documents or Equipment for Trafficking in a Drug of Dependence (s71A)
- Trafficking in a Drug of Dependence – Commercial Quantity (s71AA)
- Trafficking in a Drug of Dependence to a Child (s71AB)
- Trafficking in a Drug of Dependence (s71AC)
- Use of Violence or Threats to Cause Trafficking in Drug of Dependence (s71AD)
- Supply of Drug of Dependence to a Child (s71B)
- Possession of Tablet Press (s71C)
- Possession of Precursor Chemicals (s71D)
- Possession of document containing information about trafficking or cultivating a drug of dependence (s71E)
- Publication of document containing instructions (s71F)
‘Manufacturing’ includes the processes of refining, manipulating and mixing any poison or controlled substance (even if that substance is in a raw state).
Further, ‘trafficking’ includes any of the following processes in relation to drugs of dependence:
- Preparing for trafficking (e.g. drying, pressing or packaging drugs);
- Manufacturing;
- Selling;
- Exchanging;
- Agreeing to sell;
- Offering for sale (even if the sale does not go ahead); or
- Having in possession for sale.
Therefore, even if the accused doesn’t profit from the transaction of drugs (e.g. buying drugs to gift to a friend), they can still be held liable for trafficking.
The prosecution can prove trafficking offences through either direct evidence or inference. Direct evidence might include the police observing the sale of drugs or finding phone messages indicating a drug deal. However, it can also be inferred that the accused is involved in trafficking if they:
- Are in possession of a trafficable quantity;
- Have a trafficable quantity packaged or prepared for sale; and/or
- Possess other items that indicate the sale of drugs (e.g. scales, bags or cash).
The maximum penalty for trafficking and manufacturing offences is dependent on the nature of the offence and the quantity of drugs.
In matters involving the trafficking of non-commercial quantities, the maximum sentence is 15 years imprisonment. However, if the offence occurred near a school, the maximum sentence is 20 years’ imprisonment.
Similarly, if the matter involves trafficking drugs to a child, the maximum sentence is 20 years imprisonment. However, if the offence occurred near a school, the maximum sentence is 25 years imprisonment.
If the accused is found guilty of trafficking a commercial quantity, the maximum sentence is 25 years imprisonment. But if the offence is committed in association with a criminal organisation, the accused is liable to a maximum sentence of life imprisonment and a fine of approximately $826,000.
Further, if the accused is found guilty of trafficking a large commercial quantity, the maximum sentence is life imprisonment and a fine of approximately $826,000.
Finally, matters involving the possession of a tablet press or precursor chemicals carry a maximum sentence of 5 years imprisonment or a fine of approximately $99,000 or both. Offences involving the possession of substances, materials, documents or equipment for trafficking carry a maximum sentence of up to 10 years imprisonment.
Other Drug Offences
Section 74 of the Drugs Act (Vic) states that it is an offence to introduce a drug of dependence into the body of another person. This charge carries a maximum penalty of 1 years imprisonment or a fine of approximately $4,950 or both.
Section 78 also notes that it is an offence to obtain drugs of dependence by false representation. This might include acts like forging a prescription or misleading an authorised person or doctor into providing you with drugs of dependence. The maximum penalty for this offence is 1 years imprisonment or a fine of approximately $3,300 or both.
The Court Procedure for Drug Related Offences in Victoria
If you have been charged with a drug related offence, it is important to understand the various procedural paths that your case might take. This area of law is highly complex. If you need expert advice and representation, please contact one of our drug offence lawyers at Sher Criminal Lawyers. Find peace of mind knowing that your case is being professionally navigated towards the best possible outcome.
If you have been charged with a summary drug offence, your matter will likely be heard and finalised in the Magistrates Court of Victoria. Summary matters may involve several complex stages of case preparation and court procedure, including:
- Police Questioning
- Filing of Charges
- First Mention Hearing
- Summary Case Conference
- Contest Mention
- Contested Hearing
If you plead guilty to the drug related charges, your matter may be heard and finalised in one day. However, if you plead not guilty, the prosecution must prove each element of the relevant offence beyond a reasonable doubt. The prosecutions failure to do so will result in the defendants being found not guilty of that charge.
If you have been charged with an indictable drug related offence, your matter might start in the Magistrates Court, but it will likely be finalised in the County Court. Indictable matters may involve several complex stages of case preparation and court procedure, including:
- Police Interview
- Committal Proceedings
- Plea Hearing
- Pre-trial Disclosure
- Directions Hearing
- Arraignment
- Trial
- Sentencing Hearing
Indictable cases can be heard summarily in the Magistrates Court under certain circumstances. If a charge carries a maximum sentence of 10 years imprisonment or less, it can be heard summarily with the consent of the defendant and the Magistrate’s approval. It is also possible for experienced criminal lawyers to negotiate alternative assault charges with the prosecution, which may result in the matter being heard in the Magistrates Court.
If you plead not guilty, the prosecution must prove each element of the relevant offence beyond a reasonable doubt. The prosecutions failure to do so will result in the defendant being found not guilty of that charge.
Things to Consider When Charged with Drug Related Offences in Victoria
Every drug related case is unique. Different offences require different elements to be proven. If all of the elements for a particular offence cannot be proven, the accused cannot be held legally liable for committing that offence. This is why it is important to seek the help of a criminal defence attorney who specialises in drug charges. Our expert team at Sher Criminal Lawyers is highly experienced at defending drug charges before the Magistrates and County Courts of Victoria. We are here to help you obtain the best possible outcome in your drug related matter.
Things for the Accused to Consider
Our specialist team at Sher Criminal Lawyers can answer your questions and provide you with immediate expert advice and representation in your drug matter. We will explain your legal options to you by answering important questions such as:
- Should I cooperate with a police interview?
- Does the prosecution have enough evidence to prove my drug charge?
- Is it possible to receive a non-conviction in my drug matter?
- Is there a legal defence I can rely on in my criminal drug matter?
- How will the circumstances of the offence affect my matter?
- What is the likely outcome if I plead guilty or not guilty?
- Is it possible to have my drug charges negotiated to a lesser offence?
- Will I be subjected to a restraining order in relation to my drug charge?
Things that the Court Must Consider
If your drug related matter is taken to Court, the Magistrate or Judge will have to consider a wide range of factors that might prove you to be guilty or not guilty. Our experienced team at Sher Criminal Lawyers prepares the best possible defence by considering factors such as:
- Drug use and/or dependency;
- The quantity of drugs;
- Treatment or rehabilitation;
- The circumstances of the offence;
- The number of parties involved;
- The client’s criminal record;
- The intent of the client; and
- Any other elements of the offence noted in relevant legislation.
Penalties for Drug Related Offences in Victoria
The Victorian Courts take drug-related charges seriously. Summary offences heard in the Magistrates’ Court carry a maximum penalty of 2 years imprisonment. The most serious indictable offences heard in the County Courts carry a maximum penalty of life imprisonment.
The specific penalty for an offence is stipulated in the relevant legislation. The value of one penalty unit in Victoria is around $165.
Common penalties in relation to drug-related charges include:
- Imprisonment
- A Community Corrections Order
- A Good Behaviour Bond (Adjourned Undertaking)
- A drug treatment order
- A fine
- A criminal conviction
- Participation in the Criminal Justice Diversion Program
In summary matters regarding the use or possession of drugs of dependence, the defendant may receive an order to participate in the Diversion Program. Completion of the Diversion Program allows the defendant to avoid a criminal record by participating in counselling and/or treatment. However, in most cases, the defendant will only be offered the Diversion Program if they:
- Take full responsibility for the offence;
- Co-operate with the police;
- The offence does not carry a minimum or fixed sentence; and
- Diversion is approved by a police sergeant.
If you have been arrested or you are under investigation for a drug-related matter, contact our team at Sher Criminal Lawyers immediately. Drug charges carry serious penalties. Our specialist criminal defence attorney can assess every aspect of your case and prepare a defence that will ensure the best possible outcome.
What to Do If You Are Charged with a Drug Related Offence in Victoria
Drug charges are highly complex. The Court needs to consider many factors when assessing guilt. In many cases, the quantity of drugs will make a big difference in regard to the charges laid and the penalty imposed. This is why it is important to obtain expert advice from a criminal defence attorney who is extensively experienced in criminal drug matters. The best possible outcome can only be achieved if your lawyer has a functional understanding of the relevant Victorian legislation.
If you have been charged or are under investigation for a drug-related offence, please contact Sher Criminal Lawyers immediately. Our specialist team practices in this area of law routinely. We are here to help you protect your rights and achieve the best possible outcome in your matter.
Sher Criminal Lawyers advises and represents clients in all kinds of drug matters before the Magistrates and County Courts of Victoria.
Our specialist criminal lawyers are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
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