Will I Go to Prison if I’m Caught in Possession of Drugs?

Caught in Possession of Drugs is it illegal to have drugs in your system melbourne

Every week, our specialist criminal lawyers in Melbourne help people who have been charged with drug possession. The first question that many people ask during their initial consultation is “Will I go to prison for possession of drugs?”.

In Victoria, you can go to prison if you are found guilty of drug possession. In particular, you can go to prison for:

  • Possessing more than 50 grams of cannabis (maximum penalty of 1 years imprisonment);
  • Possessing any other drug of dependence (e.g. cocaine, MDMA, etc.) (maximum penalty of 1 years imprisonment); or
  • Possessing cannabis or any other drug of dependence for the purpose of trafficking (maximum penalty of 5 years imprisonment).

In the Magistrates Court of Victoria between July 2016 – June 2019, 31.2% of charges related to possessing a drug of dependence (undefined) and 23.4% of charges related to possessing a prescribed drug resulted in imprisonment.

Many people are imprisoned each year for drug possession. It is vital that you speak to our specialist criminal lawyers immediately if you’re charged with or under investigation for drug-related offences in Melbourne or regional Victoria.

Please note that this article is not legal advice. It only presents general information. 


Drug Possession Charges in Victoria

What is the Law on Drug Possession

In Victoria, the main piece of legislation concerning drug offences is the Drugs, Poisons And Controlled Substances Act 1981 (the Drugs Act).

Under the Drugs Act, two criminal offences are related to drug possession:

Unauthorised Possession of Poison or Controlled Substance

Section 36B(2) states that you are guilty of Unauthorised Possession of Poison or Controlled Substance if at the time of the offence you:

  • Possess a Schedule 8 poison, Schedule 9 poison or Schedule 4 poison; and
  • You are not authorized or licensed to do so.

Possession of a Drug of Dependence

Section 73 states that you are guilty of Possession of a Drug of Dependence if at the time of the offence you:

  • Possess a drug of dependence; and
  • You are not authorized or licensed to do so.

The Difference Between Sections 36B(2) and 73

Section 36B(2) is commonly used to prosecute people who illegally possess prescription drugs (e.g. fentanyl). On the other hand, section 73 is more commonly used to prosecute people who illegally possess a drug that can’t be possessed under any circumstance (e.g. cocaine).

Which Drugs are Illegal to Possess in Victoria

Poisons and Controlled Substances

As noted above, it is illegal in Victoria to possess a schedule 8 poison, schedule 9 poison or schedule 4 poison if you are not authorized or licensed to do so. These schedules are regulated by the Australian Therapeutic Goods Administration and can be found in the national Poisons Standard.

  • Schedule 8 Poisons (Controlled Drugs): Examples include ketamine, some benzodiazepines, fentanyl, morphine, oxycodone, methadone, pethidine and buprenorphine.
  • Schedule 4 Poisons (Prescription Only Medicine): Examples include local anaesthetics, antibiotics, strong analgesics and most benzodiazepines. 

Drugs of Dependence

It is also illegal to possess drugs of dependence if you are not authorized or licensed to do so. “Drugs of Dependence” are listed under schedule 11 of the Drugs Act 1981 (Vic). The list is extensive, but examples include:

  • Cannabis
  • Cocaine
  • Methamphetamine
  • Heroin
  • Some psychoactive substances such as LSD

It is also worth noting that some other chemical substances, synthetic drugs and analogues of drugs are also included in the Drugs Act 1981 (Vic). An analogue of a drug is a substance that has been modified to be chemically similar to an existing drug.

What Evidence is Needed to Prove Drug Possession

To prove a charge of drug possession, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Had a drug or controlled substance in their custody or control;
  • Knew that the drug or substance was in their possession; and 
  • Intended to possess the drug or substance.

Possession includes circumstances where the drugs are located:

  • On the person;
  • On the land, property or premises that the person occupies (e.g. in your house); or
  • In any place that is used, enjoyed or controlled by the person (e.g. in your car).


Penalties for Drug Possession in Victoria

Unauthorised Possession of Poison or Controlled Substance

In Victoria, you may receive a criminal record if you are found guilty of Unauthorised Possession of Poison or Controlled Substance (Section 36B(2)). The maximum penalty for this offence is a fine of 10 penalty units (approximately $1,650).

Possession of a Drug of Dependence

In Victoria, the criminal penalty for Possession of a Drug of Dependence depends upon:

  • The type of drug you possessed;
  • The amount you had in your possession; and
  • The purpose for which you possessed it.

If you are convicted of possessing a small quantity of cannabis (up to 50 grams) not for the purpose of trafficking, the maximum penalty that you can receive is a fine of 5 units (approximately $800) (s 73(1)(a)).

If you are found guilty of possessing a larger quantity of cannabis (greater than 50 grams) or any other drug of dependence (e.g. cocaine, MDMA, etc.) not for the purpose of trafficking, the maximum penalty that you can receive is:

  • A fine of 30 units (approximately $4,950);
  • 1 years’ imprisonment; or
  • Both.

Therefore, you can go to jail if you are caught in possession of more than 50 grams of cannabis or any other drug of dependence (s 73(1)(b)).

If the Court is satisfied on the balance of probabilities that the possession of drugs was related to trafficking, the maximum penalty that you can receive is:

  • A fine of 400 units (approximately $66,000);
  • 5 years’ imprisonment; or
  • Both.

As such, you can go to jail if you are caught in possession of a drug of dependence for the purpose of trafficking (s 73(1)(c)). If you are charged with trafficking drugs, not just possessing drugs for the purpose of trafficking, the penalties can be even more severe!


Other Offences Related to Drug Possession in Victoria

If you are caught in possession of a drug of dependence in a traffickable quantity, the police can use this as evidence that you are also guilty of drug trafficking.   

Drug possession charges are often laid in tandem with the drug use charges. It is illegal to consume a drug of dependence by:

  • Smoking;
  • Injecting;
  • Inhaling;
  • Swallowing; or
  • Any other way of getting it into the body.

It is also illegal to have drugs of dependence in your system or be under the influence of those drugs when driving a vehicle. This offence is known as drug driving

In Victoria, having drugs in your system does not count as possession.  


What Punishment Do People Normally Receive for Drug Possession (Victoria)

The latest statistics from the Sentencing Council of Victoria reveal which punishments and sentences are most common in regard to drug possession charges. 

Between July 2016 – June 2019 in the Magistrates’ Court, 4,048 sentences were passed in relation to the charge of possessing a drug of dependence (undefined). The most common sentences were:

  • Community Correction Order (32.7%)
    • 66.2% of Orders were made for 12-18 months 
    • 20.7% of Orders were made for 18-24 months
  • Imprisonment (31.2%)
    • 43.1% of sentences were shorter than 3 months
    • 56.9% of sentences were 3 months or longer
  • Fine (21.6%)
    • 32.2% of fines were between $500<$1,000
    • 27.4% of fines were between $1,000<$2,000
  • Adjourned Undertaking/Discharge/Dismissal (14.2%)

Further, 2,951 sentences were passed in relation to the charge of possessing a drug of dependence (prescribed drugs). The sentencing statistics were very similar to those statistics presented above.

These statistics demonstrate that many people who are found guilty of drug possession go to prison. Those offenders who aren’t sent to prison often face alternative criminal sentences such as a Community Correction Order or fine. 


What to Do If You Are Charged With Drug Possession

The police may try and pressure you into talking to them if you are arrested or under investigation for drug possession. It is best to stay quiet and say “no comment”. The only thing you should tell the police is that you’d like to speak to a lawyer.

Please contact Sher Criminal Lawyers immediately if you have been charged or are under investigation for drug possession or other drug-related offences. Our defence experts specialise in drug-related charges and can help you to achieve the best possible outcome in your matter. We have extensive experience both advising and representing clients 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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