Drug offences

For the purposes of Victorian law, the term ‘drug’ means a drug of dependence. For the definition of a ‘drug of dependence’, see section 4(1) and schedule 11 of the DPCS Act.

Amendments to the DPCS Act in 2017 added synthetic cannabis and other synthetic substances to the list of drugs of dependence, as well as ‘analogues’ of drugs. An analogue of a drug is a similar, but structurally modified, version of the drug.

The DPCS Act creates the following main categories of drug offences:

• use;
• possession;
• cultivation; and
• trafficking.

Use and possession offences are less serious than cultivation and trafficking offences.

Definition of use

The use of a drug of dependence is an offence. Section 70(1) of the DPCS Act defines ‘use’ as smoking, inhaling the fumes of, or intro­ducing a drug of dependence into a person’s body.

Penalties

The offence of using a drug of dependence is a summary offence (s 75 DPCS Act). The use of cannabis or tetrahydrocannabinol (THC) carries a maximum penalty of up to 5 pu (s 75(a)); there is no jail penalty, even for subsequent offences. The use of other drugs carries a maximum penalty of a fine of up to 30 pu or imprisonment for one year, or both (s 75(b)).

Cautioning scheme

Victoria Police and Victorian courts have introduced several schemes for people who commit drug offences. Some of these schemes aim to divert people away from the criminal legal system, while other schemes focus on harm minimisation and treatment options for people who use drugs.

People who use or possess small amounts (less than a traffickable quantity) of cannabis or other drugs may be cautioned rather than charged. This decision is at the discretion of the police informant. The caution process can include counselling and requires the person to admit to the offence. A person may receive two cautions.

Diversion

The Criminal Justice Diversion Program (see ‘Diversion’ in Chapter 1.3: Sentencing in the Magistrates’ Court) may also be relevant for people charged with drug offences for the first time. If the police informant consents to diversion, if the magistrate is satisfied that diversion is appropriate, and if the accused ‘acknowledges responsibility’ for the offence, the charges are adjourned until after the accused has participated in the program. The accused is not required to formally plead guilty to the drug offence.

On completion of certain conditions of the program (e.g. undertaking drug treatment or counselling, or making a donation to the court charitable fund) the court discharges the accused without making any finding of guilt or imposing any sentence or penalty (s 59(4) Criminal Procedure Act 2009 (Vic)).

Most people would strongly wish to avoid a conviction or finding of guilt for a drug offence. This is particularly important for those who wish to travel overseas, as having a drug-related criminal record makes it difficult to enter many countries (see Chapter 3.9: Understanding criminal records).

For more information, visit the Magistrates’ Court website (www.mcv.vic.gov.au).

Court-based support services

Assistance is available for people who are dependent on drugs or alcohol and who are appearing before the Magistrates’ Court. This assistance includes the Court Integrated Services Program. Court Integrated Services Program The Court Integrated Services Program (CISP) provides case management and aims to reduce the likelihood of a person reoffending by connecting them to relevant support services. Referrals can be made for support for drug and alcohol issues, housing instability or homelessness, disability, and mental health issues.

A person may be eligible for this program if:

• they are appearing before a court where CISP operates;
• they consent to being involved in CISP;
• they have a physical or mental disability or illness;
• they have issues relating to drug or alcohol use, or to a lack of social, family or economic support.

For CISP’s contact details, see ‘Contacts’ at the end of this chapter.

CISP Remand Outreach Program (CROP)

CROP is an extension of CISP; CROP works with people on remand, people before higher courts and people before Magistrates’ Court venues that do not offer CISP. CROP support is often in the form of brief intervention.

Referral and treatment

Anyone can refer a person to CISP. The police might refer someone by bailing them to attend an assessment. Magistrates can also refer people. Alternatively, people can self-refer or have their legal representative contact the program’s clinicians at court.

The only requirements of the program are that the person meets the eligibility criteria, CISP is available at the court they are attending, and they consent to be involved in the program. It is not necessary to plead guilty to participate in CISP.

Once placed in the program, a clinician arranges for the person to be assessed. Suitable treatment (provided by various support agencies) is arranged. If drug dependence is a problem, the clinician arranges treatment at an accredited drug treatment agency.

Once a person is part of CISP, it becomes a condition of bail that they comply with all the directions of the program. When the person returns to court, the clinician will have prepared a report for the magistrate.

The program usually lasts four months, with reviews every month by a magistrate. A person’s performance during the program is taken into account in sentencing. Successful participation in the program should result in a lesser sentence and, in some cases, can make the difference between going to jail or not.

What is possession?

‘Possession’ is an indictable offence under section 73 of the DPCS Act. The prosecution can prove possession by relying on the common law (see R v Mateiasevici [1999] VSCA 120) or by relying on the deeming provision or extended meaning in section 5 of the DPCS Act.

Under common law, a person is in possession of a drug if they have physical control or custody of the drug. The prosecution must prove the person knew of the presence of the drug and also that the person intended to possess the drug.

In many cases, custody of a drug may be enough evidence of possession, including the necessary mental element. This is because the inference of knowledge may often be drawn from the surrounding circumstances (see Williams v The Queen [1978] HCA 49).

As well as its common law meaning, ‘possession’ has an extended meaning under the DPCS Act (s 5); a person is deemed to be in possession of drugs if:

• the drugs are on land or premises occupied by the person; or
• the drugs are used, enjoyed or controlled by the person in any place whatsoever, unless the person satisfies the court to the contrary.

In the case of R v Clarke and Johnstone, the court decided that the DPCS Act (s 5) puts the onus on the prosecution to prove beyond reasonable doubt either occupation of the relevant land or premises where the drug was found, or that the drug was used, controlled or enjoyed by the accused in any place whatsoever. The legal test of occupation is having sufficient control over land/premises to be able to exclude others. Mere use of premises is insufficient (see Fox v Warde [1978] VicRp 37; Thow v Campbell [1996] QCA 522; R v Pisano [1997] 2 VR 342); R v Tran (2007) 16 VR 673).

Statutory possession: Burden of proof (s 5 DPCS Act)

If the court is satisfied that:

1 the substance found on the premises is an illegal drug; and

2 the premises was occupied by the accused,

the accused is guilty of possession unless they can prove, on the balance of probabilities, that they were not in common law possession of the drug.

This is a ‘deeming’ provision that shifts the burden of proof (albeit on the balance of probabilities) to the accused. Deemed possession includes situations where the accused is:

1 the occupier of land where cannabis is grown;

2 a husband or wife who occupies (as owners or tenants) a house where drugs are found;

3 the occupier of a room in a motel where drugs are found; or

4 the owner or driver of a car containing drugs.

The burden of proof on the accused can be satisfied if it can be proved that the accused did not know the drug was there or, even if the existence of the drug was known, did not intend to possess it.

Note that the High Court has held in Momcilovic v The Queen [2011] 245 CLR 1 that the section 5 deeming provision applies only to possession-type offences and not to trafficking charges based on possession.

Some other cases worth considering in relation to possession are:

• Kural v The Queen [1987] HCA 16;
• He Kaw Teh v The Queen [1985] HCA 43;
• Pereira v Director of Public Prosecutions [1988] HCA 57; and
• R v Clare [1993] QCA 558.

Penalties for possession

Possession of cannabis or THC in a small quantity (50 grams or less) that is not related to trafficking carries a penalty of not more than 5 pu. For a first offence before a court (i.e. the person did not receive a caution nor diversion), the penalty is often very low; for example, a section 76 bond (see ‘Summary of penalties’, below). As discussed above, people found in possession of a small quantity of cannabis for the first time are usually cautioned or receive diversion and so avoid any finding of guilt or formal sentence from a court.

The maximum penalty for possession of any drug where possession of the drug is not related to trafficking is a fine of 30 pu or imprisonment for one year, or both (s 73(1)(b) DPCS Act).

For these two lower maximum penalties to apply, the accused must satisfy the court, on the balance of probabilities, that the possession was not related to trafficking. If the court is not satisfied that the possession was not for the purpose of trafficking, then there is a higher maximum penalty of a fine of up to 400 pu or imprisonment for five years, or both (s 73(1)(c) DPCS Act).

Possession of a traffickable quantity

If the prosecution proves:

• possession;
• the identity of the drug; and
• that the quantity is a traffickable quantity,

then that is prima facie evidence of trafficking (s 73(2) DPCS Act).

Trafficking is an indictable offence. However, it can be tried summarily for amounts under a commercial quantity.

What is trafficking?

Trafficking at common law means ‘movement from source to ultimate user in the course of trade’ (R v Clarke and Johnstone [1986] VR 643 at 659). Trafficking at common law additionally requires at least an activity performed in a commercial setting and contact between the alleged trafficker and at least one other person (Giretti v The Queen (1986) 24 A Crim R 112). Trafficking includes selling in the ordinary sense. Trafficking may be proved by:

1 direct evidence (observation of, or participation in, a sale);

2 inference (a conclusion from a set of facts, such as possession of a quantity of a drug much larger than an amount for personal use, the drug has been packaged for sale, and where there are a number of indicators of sale, such as scales, bags, cash, etc.); or

3 admission (a confession to the police).

Trafficking has elements of movement and com merce (see R v Holman [1982] VR 471, at 475 per Lush J, compare D’Aloia v Brilliant [1984] VicSC 292).

NOTE

To make a gift is not trafficking

Extended definition in the DPCS Act

The DPCS Act (s 70(1)) defines trafficking to include:

1 preparing a drug of dependence for trafficking;

2 manufacturing a drug of dependence; or

3 selling, exchanging, agreeing to sell, offering for sale, or having in possession for sale, a drug of dependence.

Using the extended definition, the following may constitute trafficking:

1 preparing a drug for trafficking – thus a person who dries cannabis or packages heroin is guilty of trafficking, provided that the preparation was intended for trafficking; this is so even though no actual trafficking has occurred;

2 manufacturing or making a drug, even though no actual trafficking has occurred;

3 selling or exchanging a drug for something;

4 agreeing to sell, even if the sale does not occur;

5 offering to sell a drug to another, whether or not the offer is accepted or the sale takes place.

Even if the substance turns out not to be a drug of dependence on analysis, the mere belief by an accused that they were selling a drug of dependence is sufficient to come within the ambit of ‘offering to sell’ (Gauci v Driscoll [1985] VicRp 47). The case of Pierce v The Queen [1996] 2 VR 215 (‘Pierce case’) extends offering to sell to include a ‘rip-off’, so that even where there is no proof that there is an intention to complete the offer or that the accused was even in a position to complete such, they may be found guilty of trafficking. In the Pierce case, the court only required proof that the accused intended the offer to sell to be taken seriously;

6 possessing a drug together with an intention to sell it, even though there is no sale. It is common to find persons telling the police that the reason for their possession is that they intend to sell some of the drug, but that confession is accompanied by a vehement denial that any sale has taken place. These persons are guilty of trafficking;

7 buying drugs for a friend from a third person if that friend has given you the money to buy the drugs, even if a profit is not made from the transaction;

8 arranging for one party to sell to another party, even if no profit is made.

Penalties for trafficking

The penalties for trafficking under the DPCS Act are as follows:

• For trafficking offences of non-commercial quantities heard on indictment, the maximum penalty is 15 years’ imprisonment (s 71AC(1)).
• For trafficking to a person under the age of 18 years (s 71AB), or trafficking at or within 500 metres of a school, the maximum penalty is 20 years’ imprisonment, or a fine of up to 2400 pu, or both (s 71AC(2)).
• For trafficking to a person under the age of 18 years at or in a public place that is within 500 metres of a school, the maximum penalty is 25 years’ imprisonment (s 71AB(2)).
• The penalties for trafficking commercial quan- tities are very severe: the maximum penalty is 25 years’ imprisonment (s 71AA(1)). This offence is a category 2 offence under the Sentencing Act, which means a court must impose a custodial order for this offence unless an exception applies (s 5(2H)(a)–(e) Sentencing Act).
• The maximum penalty for trafficking commercial quantities for the benefit of, or at the direction of, a criminal organisation is life imprisonment and a fine of 5000 pu (s 71AA(2)). This offence is a category 1 offence under the Sentencing Act, which means that the court must impose a custodial order (s 5(2G) Sentencing Act).
• For trafficking large commercial quantities, the maximum penalty is life imprisonment and a fine of up to 5000 pu (s 71). This offence is a category 1 offence under the Sentencing Act.

Prima facie evidence of trafficking

If a person possesses a traffickable quantity of a dangerous drug, this is prima facie evidence of trafficking. This means that a court or jury, in the absence of evidence to the contrary, may be satisfied beyond reasonable doubt that the offence has been committed (s 73(2) DPCS Act).

The burden remains on the prosecution to establish the case beyond reasonable doubt. That is, although the amount in a person’s possession may establish trafficking prima facie, a court or jury may, after considering all of the circumstances and whether or not the accused has given evidence, decide that the prosecution has not proven trafficking beyond reasonable doubt.

If the prosecution proves:

1 possession (see ‘Possession: Offences and penalties’ above; note the effect of Momcilovic v The Queen [2011] 245 CLR 1: the section 5 deeming provision does not apply to trafficking charges based on possession);

2 the identity of the drug; and

3 the quantity is a traffickable quantity (see ‘Traffickable quantity’, below),

then that is prima facie evidence of trafficking.

Possession is prima facie evidence of trafficking in the way(s) that are consistent in the case. In a case where all the evidence showed that the person in possession had not manufactured the drug, the possession would not be prima facie evidence of trafficking in that way (R v Clarke and Johnstone [1986] VR 643 at 659).

Quantities

The Court of Appeal has decided that the relative harmfulness of the particular drug is an irrelevant consideration when determining sentences (R v Pidoto and O’Dea [2006] VSCA 185).

However, the amount of a drug alleged to be possessed or trafficked has a significant impact on the penalty. The legislation makes a distinction between the following quantities: small, traffickable, commercial mixed, commercial pure, large commercial mixed, and large commercial pure.

The exact measurements of the quantities for each drug is set out in the DPCS Act (sch 11). Schedule 11, Part 1 contains the list of substances categorised by pure weight. Part 2 lists narcotic plants. Part 3 lists pure and mixed threshold quantities.

Small quantity

Small quantities attract much lower penalties for any drug offences. For a first offence of possession being heard by a Magistrates’ Court, there is a presumption in favour of a section 76 bond (see ‘Summary of penalties’, below).

A small quantity of fresh or dried cannabis is 50 grams or less. The weight in grams of a small quantity of any drug that is not a narcotic plant is listed in schedule 11, Part 3, column 4 of the DPCS Act. The quantity includes the weight of any substance with which the drug is mixed.

Traffickable quantity

A traffickable quantity is defined by weight or number of plants (s 70(1) DPCS Act). The amounts are listed in schedule 11, Parts 1, 2 and 3, column 3 of the DPCS Act. ‘Traffickable quantity’ includes a drug that is not contained or mixed with another substance. This allows for the calculation of a traffickable quantity for a drug (specified in column 1 of Part 3 of schedule 11), either on the quantity specified in column 3 or column 3A.

Narcotic plants

The most common narcotic plant is cannabis. The traffickable weight for cannabis is 250 grams or 10 plants. The weight refers to fresh or dried cannabis and comprises all parts of the plant, including flower tops, leaves, stalks, stems, roots and seeds.

The traffickable weight for the opium plant is 100 grams or 50 plants, while for the coca plant, the traffickable weight is 800 grams.

The traffickable quantity of substances containing THC (e.g. hashish or hash oil) is 25 grams. This amount is a mixed amount, so the proportion of THC to other substances is irrelevant.

Note that the weight of cannabis reduces significantly once dried. If cannabis was weighed by a police botanist while fresh or just cut, its weight may make out a commercial quantity; however, at a subsequent weighing, once the plant has lost its moisture, the amount may be under the commercial quantity threshold. An accused is entitled to contest a police botanist’s certificate and have the court order that the cannabis be made available to a defence-appointed botanist (see ‘Certificate of analysis’, below).

Other drugs

Other drugs of dependence are no longer weighed in pure amounts. The relevant weight is now the weight of the whole mixture, including substances other than the drug. The table below shows the traffickable quantities of common drugs, where the weight is measured in mixed amounts.

The 2017 amendments to the DPCS Act added synthetic substances (e.g. synthetic cannabis, 4-MMC (also known as mephedrone or ‘meow meow’), BZP, 1,4-BD, GBL and MDPV) to schedule 11. The complete list of drugs and traffickable quantities of drugs weighed in mixed amounts is found in schedule 11, Part 3, column 3 of the DPCS Act.

The following table shows the traffickable quantities of common drugs where the weight is measured in pure amounts.

The complete list of drugs and traffickable quantities of drugs weighed in pure amounts is found in schedule 11, Part 1, column 3 of the DPCS Act.

Commercial quantity

A commercial quantity is defined in section 70(1) of the DPCS Act. Anyone found guilty of trafficking a commercial quantity is liable to very severe penalties (see ‘Summary of penalties’, below).

In Director of Public Prosecutions Reference No 1 of 2004; R v Nguyen [2005] VSCA 172, the court held that in order to prove the offence of trafficking a commercial quantity, it must be proved by the prosecution beyond reasonable doubt that ‘the accused knew or believed that it was, or was likely’ that ‘the amount in question was not less than a commercial quantity’. (See also R v Van Xuan Bui [2005] VSCA 300.)

When measuring the weight of the illegal substance to determine whether the weight amounts to a commercial quantity, it may be appropriate to distinguish between the quantity that is for the possessor’s own use and the quantity that the possessor has for sale to others (this comment by Justices Crockett and Philips in R v Kardogeros [1991] 1 VR 269 was probably made obiter dictum, which means it is not a binding precedent).

It is not appropriate to distinguish between the amount of the substance that is usable and the amount that is unusable (R v Kardogeros). In the Kardogeros case, the accused was convicted of having a commercial quantity of cannabis (150 kilograms) even though 80 kilograms was allegedly unusable material (e.g. stalks). (See also R v Torrisi [1998] VSCA 21; R v Coviello (1995) 81 A Crim R 293.)

Commercial quantities of some common drugs are shown in the table below. The complete list of commercial quantities is found in schedule 11, Parts 1, 2 and 3, column 2, and in Part 3, column 2A of the DPCS Act.

Large commercial quantity

Trafficking large commercial quantities carries the most severe penalties for drug offences. The complete list of large commercial quantities is found in schedule 11, Parts 2 and 3, column 1A of the DPCS Act.

Aggregated quantities

A commercial quantity or large commercial quantity can be comprised of an aggregate of two or more drugs of dependence, where the quantity of each drug alone does not amount to a commercial or large commercial quantity.

Aggregated quantities can include a ‘dilute’ drug, that is, a drug contained in or mixed with another substance. Section 70 of the DPCS Act explains how the quantity of each substance is made into a fraction and added together.

What is cultivation?

Cultivation of a non-commercial quantity of a narcotic plant is an indictable offence triable summarily (s 72B DPCS Act). A narcotic plant is defined in section 70(1) of the DPCS Act with reference to schedule 11, Part 2. A narcotic plant includes a cutting of a plant, whether or not the cutting has roots. The more commonly known narcotic plants are cannabis, the opium poppy, and the coca plant.

The statutory definition of ‘cultivation’ (s 70(1) DPCS Act) is wide. To cultivate includes to sow, plant, grow, tend, graft, divide, transplant, nurture or harvest a narcotic plant. A single one of these acts constitutes the offence; for example, to water (nurture) a plant or to harvest one leaf constitutes the act of cultivation for the purposes of the DPCS Act.

The prosecution does not need to prove that the offender knew that the plant was a narcotic plant. However, it is a defence to not know, suspect or reasonably have been expected to know or suspect that the plant was a narcotic plant (s 72C DPCS Act).

Penalties for cultivation

If the court is satisfied on the balance of probabilities that the cultivation was not related to trafficking, then the penalty is a fine of not more than 20 pu, or imprisonment of not more than one year, or both (s 72B(a) DPCS Act). In these circumstances, the court also has the option of a bond under section 76(1)(a)(i) of the DPCS Act (see ‘Summary of penalties’, below).

The maximum penalty for cultivation – where the purpose is related to trafficking – is imprisonment for up to 15 years (s 72B(b) DPCS Act). The maximum penalty for the cultivation of a commercial quantity of a narcotic plant is imprisonment for 25 years (s 72A DPCS Act). This offence is a category 2 offence under the Sentencing Act 1991 (Vic) (‘Sentencing Act’), which means that a court must impose a custodial order for this offence unless an exception applies (s 5(2H) (a)–(e) Sentencing Act). The prosecution must prove beyond reasonable doubt that the accused had actual knowledge of the quantity of cannabis alleged to have been cultivated; that is, that the accused knew there were 25 kilograms or 100 plants or more being cultivated (see R v Van Xuan Bui [2005] VSCA 300).

For a large commercial quantity, the maximum penalty is life imprisonment and a fine of up to 5000 pu (s 72 DPCS Act).

In 2016 and 2017, several new offences were established in the DPCS Act. The recently introduced offences included:

1 The use of violence or threats to cause another person to traffick a drug. This is an indictable offence and carries a maximum penalty of five years’ imprisonment (s 71AD(1)).

2 The supply of a drug of dependence to a child at a school, or in a public place within 500 metres of a school, for the purposes of the supply of that drug by that child to another person, whether a child or adult, or for the use of that drug by that child. The term ‘supply’ is broad enough to include those circumstances where the drug is given to the child or is bought for the child and then given to the child without a profit being made. This charge does not apply to a person who supplies a drug to a child if that person is also a child. It is a defence if the person supplying the drug to the child believes on reasonable grounds that the child is aged 18 or above. These are indictable offences and carry a maximum penalty of 20 years’ imprisonment, or a fine of 1600 pu, or both (s 71B(1A(a), (b)).

3 The possession of a document containing information about trafficking or cultivating a drug of dependence. The prosecution bears the onus of proof if the accused raises any ‘matter of exception qualification or defence’. This is an indictable offence and carries a maximum penalty of five years’ imprisonment, or a fine of 600 pu, or both (s 71E).

4 Intentionally or recklessly publishing a document that contains instructions for the trafficking or cultivating of a drug. The prosecution bears the onus of proof if the accused raises any ‘matter of exception qualification or defence’. Note that it is irrelevant whether the document or instructions actually work to traffick or cultivate a drug. ‘Publish’ includes to sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate. This is an indictable offence and carries a maximum penalty of up to 10 years’ imprisonment or a fine of 1200 pu (s 71F).

5 Intentionally or recklessly permitting the use of premises for trafficking or cultivating a drug. If the accused is charged with ‘recklessly permitting use of premises for cultivating a drug’, the accused may seek to satisfy the court on the balance of probabilities that they did not know or suspect, and could not reasonably have been expected to know or suspect, that the narcotic plant was a narcotic plant. The term ‘premises’ is defined broadly to include:

– residential dwellings (including temporary accommodation),

– commercial or industrial land or buildings,

– other structures on land (including cabins, caravans, sheds and shipping containers),

– vehicles (including motor vehicles, aircraft, boats and vessels).

This is an indictable offence and carries a maximum penalty of five years’ imprisonment (s 72D).

6 Several new offences created to target ‘psychoactive substances’. Psychoactive substances are defined as substances that, when consumed by a person, have a ‘psychoactive effect’ (i.e. the ‘stimulation or depression of a person’s central nervous system, resulting in hallucinations, or in a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood’; or ‘causing a state of dependence, including physical or psychological addiction’). Producing, selling, supplying or advertising any substance that has a psychoactive effect, or is purported to have a psychoactive effect, when consumed are all criminal offences (ss 56D, 56E, 56F). These offences carry maximum penalties of up to two years’ imprisonment, or a fine of 240 pu, or both.

The following is a brief summary of some other offences under the DPCS Act. It is an offence to:

1 introduce a drug into another person’s body (s 74);

2 forge a prescription for a drug (s 77);

3 make a false representation to obtain: a a drug from an authorised person; b a medical prescription for a drug; c an injection of a drug by a doctor; and d the filling of a prescription (s 78);

4 conspire to commit an offence. It is a conspiracy to agree with another person to commit any of the offences in Part V of the DPCS Act. The offence of conspiracy is completed at the time the agreement is made. If the agreed offence is committed, then the conspiracy is regarded as having merged with the agreed offence and the latter only should be charged (s 79);

5 aid, abet, counsel, procure or incite the commission of an offence under Part V of the DPCS Act. Incitement includes inducement, encouragement and authorisation (s 80);

6 attempt to commit the offences in sections 71–75, 77, 78. An attempt to commit an offence carries the same penalty as the principal offence, and generally requires: a the intent to commit the principal offence, and b an act furthering the intent that is sufficiently close to the offence intended;

7 conspire, aid, abet (etc.) in Victoria to commit any offence outside Victoria (s 80(3));

8 do a preparatory act in Victoria for the com- mission of an offence outside Victoria (s 80(4));

9 supply a drug of dependence to a child. The term ‘supply’ is broad enough to include those circumstances where the drug is simply given to the child or is bought for the child and then given to the child without profit being made. This charge also applies if the supplier is a child. It is a defence if the person supplying the drug to the child believes on reasonable grounds that the child is 18 years of age or more (s 71B(1));

10 possess a substance or material, or documents or equipment for trafficking a drug of dependence. This includes documents relating to the prep- aration, cultivation or manufacture of a drug. However, for a person to be found guilty of the offence, it must be proven that they possessed the relevant item with the intention of ultimately trafficking the drug. This offence is an indictable offence that carries a maximum penalty of 10 years’ imprisonment (s 71A);

11 possess a tablet press without lawful excuse. This is an indictable offence that carries a maximum penalty of five years’ imprisonment, or a fine of up to 600 pu, or both (s 71C); and

12 possess a prescribed precursor chemical in a quantity that is not less than the prescribed quantity applicable to that precursor chemical. This is an indictable offence that carries a maximum penalty of five years’ imprisonment, or a fine of up to 600 pu, or both (s 71D).

See the ‘Maximum penalties for state (Victorian) drug offences’ table, below.

Certificate of analysis

In all drug offences, the prosecution is required to prove the identity and quantity of the drug involved. This is normally done by the production of an analyst’s certificate. The DPCS Act (s 120) provides that an analyst’s or botanist’s certificate as to the identity and quantity of a drug is usually sufficient evidence to prove quantity and identity. (However, if these matters are disputed by the accused, the analyst or botanist will usually be called to give evidence.)

The certificate must be served on the accused personally at least seven days before the court hearing, or filed with the court not less than 10 days before the hearing. If the accused objects to the certificate and wishes the analyst or botanist to give evidence, notice must be given at least three days before the hearing to the informant and the analyst or botanist (s 120 DPCS Act).

The certificate of analysis is not evidence of the identity and quantity of the drug if it has not been served on the accused or filed with the court within the requisite time, or once the accused has given the appropriate notice for the attendance of the analyst or botanist (s 120(2) DPCS Act).

There must be evidence that the material allegedly seized from an accused is the same material that was analysed for the certificate provided (see R v Joseph Daniels (unreported, VSC, Phillips CJ, 11 May 1992)). This requires the prosecution to establish the chain of ‘continuity’. This is usually done by evidence being given by the various persons who handled the drugs.

Market value

Section 122A of the DPCS Act provides that evidence may be given by persons with certain experience as to the market (or ‘street’) value of a drug. This evidence will be deemed to be conclusive unless contrary evidence is provided. The market value of a drug is relevant as it relates to the penalty imposed, and may be indicative of whether or not the accused was trafficking (see R v Tsolacos (1995) 81 A Crim R 434).

Duplicity

Where multiple charges are laid from the same facts, the Interpretation of Legislation Act 1984 (Vic) (s 51) prohibits punishment more than once for the same act or omission.

The Victorian Supreme Court ruled in Reardon v Baker [1987] VR 877 that where a person is found guilty of trafficking because of being in possession of drugs for the purpose of sale, that person should not also be convicted of possession of those drugs; to do otherwise places the person in double jeopardy for what really constitutes one illegal act (see also R v Chhom Nor [2005] VSCA 46).

Between dates or Giretti count

In situations where the accused may have committed several separate acts (each, by itself, a separate offence), the prosecution may choose to charge one offence to cover all the separate acts. This is known as a ‘between dates’ or ‘Giretti’ count.

This is usually the case where the accused trafficks drugs over time, and makes numerous individual sales of the drug. It is appropriate to view this as one continuous offence occurring over a period of time and charge the accused with only one count of trafficking (see Giretti v The Queen (1986) 24 A Crim R 112).

The significant downside of this is that the court will regard the accused as being in the ‘business of trafficking’, with significant sentencing ramifications. If there are only a few separate incidents of trafficking, a Giretti count should not be accepted (this depends on the particular facts of the case).

Defence to prima facie case

In the absence of further evidence (i.e. evidence from the defence), prima facie evidence may become conclusive proof. Therefore, a person can be convicted based on prima facie evidence. Despite this, the burden of proof beyond reasonable doubt remains upon the prosecution at all times; the statutory provisions regarding prima facie evidence simply make it easier for the prosecution to prove its case.

The practical effect of these provisions is that the accused has to give sworn evidence in order to rebut the presumption that they are guilty.

Evidence of other witnesses may also be useful. The defence evidence would usually be a denial of trafficking and/or intent to traffick and an explanation for possession or cultivation. The most common explanation is that the drugs were for personal use.

Entrapment

The defence of entrapment, as recognised by US authorities, is not part of the law of Victoria (see R v Papoulias [1988] VR 858). In the Papoulias case, the accused was convicted of trafficking heroin on the evidence of undercover police officers, to whom he had sold heroin on a number of different occasions. As section 50 of the DPCS Act permits police officers (provided they have been appropriately authorised) to handle drugs without such handling being an illegal act, there was no basis to exclude the police evidence. (Also see R v Te [1998] 3 VR 566.) Bail Under schedule 1 of the Bail Act 1977 (Vic) (‘Bail Act’), people charged with certain drug offences lose the presumption of a right to bail. These offences are:

• trafficking commercial quantities or large commercial quantities of drugs (ss 71AA(1), 71);
• trafficking commercial quantities of drugs for the benefit of, or at the direction of, a criminal organisation (s 71AA(2));
• cultivating narcotic plants in commercial quantities or large commercial quantities (ss 72, 72A).

If charged with any of the three offences listed above, the burden is on the accused to show ‘exceptional circumstances’ before they are entitled to bail.

Under schedule 2 of the Bail Act, people charged with certain other drug offences must show a ‘compelling reason’ why they should be granted bail.

These other drug offences are:

• trafficking a drug of dependence to a child (s 71AB);
• trafficking a drug of dependence (s 71AC);
• cultivating narcotic plants (s 72B).

Participating in CISP can help to satisfy the court that there is not an unacceptable risk of the defendant re-offending because they are willing to address their drug problem (see ‘Court Integrated Services Program’, above). For more information about bail, see Chapter 3.6: How bail works.

Search with warrant

A warrant to search premises for drugs or for evidence of the commission of drug offences can be obtained from a magistrate by a police officer over a particular rank (s 81 DPCS Act). A search warrant directed to a named police officer may be executed by any member of the police force (s 81(1AA)). Evidence is required of the grounds for the belief that there are drugs on the premises or that drug offences are being committed. The magistrate must be satisfied that there are reasonable grounds for the belief before granting the warrant.

The warrant may authorise the police to enter specified premises (if necessary by force) and to search those premises and any persons or vehicles found there.

The police officer who executes the warrant must lodge with the Magistrates’ Court nearest the premises a signed written report giving particulars of all searches, persons arrested and things and documents seized and carried away (s 81(4) DPCS Act). An arrested person or the owner or occupier of the premises may apply to the court for an order to inspect this report (s 81(5)).

Search without warrant (stop and search)

Police officers may search any person or vehicle in a public place if there are reasonable grounds for suspecting the presence of drugs. Drugs or devices used in the manufacture, sale or use of any drug may be seized and carried away (s 82 DPCS Act). Property seized may be subject to forfeiture. Section 83 of the DPCS Act deals with forfeiture and the destruction of seized drugs or devices before conviction.

Common law search of the person

At common law, police officers have the power to search a person who has been taken into custody if there are reasonable grounds for believing that they are concealing on their person items that may be evidence of the commission of an offence (e.g. drugs), or items that may be used to escape or to injure themself or another person. It is standard practice for police officers to search people they take into custody.

Volatile substances search

Police officers have additional powers to search for and seize volatile substances. These provisions are intended ‘to protect the health and welfare of persons under 18 years of age’ who are engaged in inhaling volatile substances (commonly known as ‘chroming’). Police officers must consider the ‘best interests’ of any person under 18 years of age who is subject to any of these powers (s 60B DPCS Act). Significantly, these laws do not make it an offence to possess or inhale volatile substances.

Search and seizure of volatile substances

The DPCS Act facilitates the on-the-spot search and surrender of substances and items used for chroming. So, police officers may, without warrant, search a person, or search things in that person’s possession or control, for a volatile substance or an item used to inhale a volatile substance (s 60E DPCS Act); such substances and items can be seized by the police.

To conduct such a search, the police officers must reasonably suspect the person is:

• under 18 years of age;
• in possession of, or control of, a volatile substance or an item used to inhale a volatile substance; and
• inhaling or going to inhale the substance.

The powers to search (s 60F) and seize (s 60J) extend to persons of any age if the police reasonably suspect a person intends to provide a volatile substance or an item to a person under 18 to inhale or use to inhale.

Sections 60G and 60H of the DPCS Act detail the procedure for conducting a search. This includes the requirement that police officers inform a person that it is not an offence to possess a volatile substance or item used to inhale, but that police officers have the power to search for and seize such items and may use reasonable force to do so. Police must ask a person to produce any such substances or items they have in their possession. Police officers must also provide their name, rank and place of duty, in writing if requested (s 60G).

When a search uncovers a volatile substance or an item used to inhale a volatile substance, before seizing the substance or item, police officers must ask the person searched why they possess it (s 60I DPCS Act). This is intended to assist police officers in deciding whether there are reasonable grounds for seizure.

Police officers do not need to comply with the requirements in sections 60H–60I of the DPCS Act if they believe on reasonable grounds that the person will not understand because of intoxication or because it is otherwise impractical to comply with these requirements.

Apprehension and detention

Police officers may apprehend and detain a person if they reasonably believe the person is under 18 and is inhaling or has recently inhaled a volatile substance and is likely, by act or neglect, to cause immediate serious bodily harm to themself or to some other person (s 60L DPCS Act). There is no requirement that a search be conducted first or that substances or items be seized or handed over. Police officers must, if possible, inform a detained person that they have not been arrested for an offence but that they are being detained to prevent them from harming themself or others.

A person detained under section 60L of the DPCS Act must be released immediately if they are found to be over 18 years of age, or when the police no longer have grounds for believing that person recently inhaled a volatile substance or will cause immediate serious bodily harm to themself or others (s 60M). A detained person must, as soon as practicable, be released into the care of a person who police officers reasonably believe is suitable to take care of the detained person and who consents to taking care of them (e.g. a parent, guardian or other adult family member, or an employee of an appropriate health or welfare agency). Police officers have a wide discretion on this point to respond appropriately to a variety of circumstances.

If police officers have taken reasonable steps to do so but have been unable to release a person into the care of another suitable person, they may continue to detain the person unless grounds for detention no longer exist. A person detained under section 60L of the DPCS Act must not be detained in a police jail, cell or lock-up (s 60M(6)). Police officers may not interview or question a detained person in relation to any known or alleged offence during this detention (s 60M(7)).

Return of property and police records

As property may be seized that is not actually prohibited, the DPCS Act also makes provision for the return of such property. Police officers must inform the person from whom property was received or seized that they have the right to have it returned (s 60N). The person from whom the property was seized or received may apply to have the property returned at the relevant police officer’s place of duty within seven days of the receiving or seizure. However, property can only be returned to a person under 18 years of age if they are accompanied by a parent or guardian.

Police officers can dispose of, or make safe, any received or seized property if it is a risk to health or safety (s 60O DPCS Act). Any property that is not returned within seven days is forfeited to the Crown (s 60P). Police officers must make a written record of searches, receipts or seizures of property, apprehensions and detentions, and the disposal or making safe of such property (s 60Q). A person subject to these police powers may, within one year of the relevant action, request a copy of the record of action (s 60R).

There are two types of hearing process:

1- summary hearing: a final determination before a magistrate with a right of appeal to a County Court judge; and

2- indictable hearing: a trial or indictment before a County or Supreme Court judge and jury, generally following a committal proceeding. (See Chapter 3.7: Which court for which crime?, for an explanation of hearings.) Most state offences can be heard as indictable offences or summarily, but some are strictly indictable.

The DPCS Act imposes a complex structure of penalties. The penalty imposed depends on the quantity of the drug, the purpose of possession, and the nature of the substance. Penalties also vary according to the jurisdiction in which the offence is tried. The range of penalties for a particular offence can only be determined by carefully examining the DPCS Act and other relevant legislation. See the ‘Maximum penalties for state (Victorian) drug offences’ table; it is important to note that the penalties listed in this table are maximum, not mandatory, penalties.

However, in relation to trafficking large commercial quantities of drugs, a ‘standard sentence’ is likely to apply. Also, for these offences, the sentencing options other than a custodial sentence are very limited even where ‘special reasons’ apply (ss 5(2G), 5(2GA) Sentencing Act).

The penalties for indictable offences are listed in the Act that creates the offence. The penalties for indictable offences heard summarily are determined by sections 112A and 113 of the Sentencing Act. These provisions respectively limit the penalties that a magistrate may impose for a single offence to a fine of 500 pu and two years’ imprisonment.

The Sentencing Act provides for:

• prison sentences;
• drug treatment orders;
• community correction orders (with or without conviction);
• fines (with or without conviction);
• adjourned undertakings – also known as ‘good behaviour bonds’ (with or without conviction); and
• charges proven and dismissed without penalty.

Some of these penalties can have conditions attached to them, requiring assessment, supervision and treatment for drug or alcohol addiction. Such conditions can only be attached if the person being sentenced agrees to comply with them. For more information about penalties, see Chapter 1.3: Sentencing in the Magistrates’ Court.

Section 76 DPCS Act bonds

We use the term ‘bond’ or ‘good behaviour bond’ for convenience, because most people are more familiar with that terminology. However, this sentencing option is more precisely described as an ‘adjournment without conviction’, subject to the giving of certain undertakings to the court by the person being sentenced.

For people being sentenced for drug offences for the first time, and the offences are use, possession or cultivation of cannabis, or the use or possession of any drug found in Part 3 of schedule 11 of the DPCS Act, there is a presumption in favour of receiving a good behaviour bond without conviction because of section 76 of the DPCS Act. The charge must relate to ‘small quantities’ only (see ‘Quantities’, above) for any drug other than cannabis. The court must also be satisfied that the drug was not possessed or cultivated for the purposes of trafficking.

A section 76 bond is available to a person charged with conspiracy (s 79 DPCS Act) or aiding and abetting (s 80) the commission of any of the offences that come within the criteria.

Section 76 of the DPCS Act does not apply to a person who has a previous conviction under any of the Acts listed in section 76(1)(b) of the DPCS Act. These Acts include certain parts of the historical Poisons Act 1962 (Vic) and the Public Health and Wellbeing Act 2008 (Vic) as well as related Acts in other states and territories of the Commonwealth, such as the Customs Act and the Criminal Code. Most drug-related offences are included in the list.

Since section 76 of the DPCS Act only excludes those previously ‘convicted’ of a drug offence from obtaining a bond, it is presumably still possible for a person who has previously been found guilty of a drug offence (but not convicted), to receive a section 76 bond. Section 76(1)(b) provides that such a person would be excluded if they had ‘previously been dealt with under this section’ (i.e. a person who has previously received a section 76 bond).

Under section 76(3) of the DPCS Act, any previous convictions under the Children, Youth and Families Act 2005 (Vic) or corresponding state or Commonwealth Acts are to be disregarded for the purposes of determining prior drug convictions under section 76(1)(b).

Section 76 of the DPCS Act still applies if a person has received a caution or diversion (see ‘Diversion’, above). Provided the criteria for giving a bond are met, a magistrate must state their reasons if they choose to not give a person being sentenced for drug offences for the first time (for use, possession or cultivation) a bond without conviction.

The magistrate must also consider the accused’s character and prior criminal history as well as ‘all the circumstances’ and the ‘public interest’. A common reason for refusing a without conviction bond is that the accused has indicated that they do not intend to stop using cannabis. This is effectively refusing to give an undertaking to be of good behaviour.

Diversion is the preferable outcome for an offender, since no finding of guilt is made or recorded. However, if diversion is not an option, the advantage of this type of bond is that no conviction is recorded.

Where a section 76 bond is given for an offence involving a drug other than cannabis, the bond must include a condition that the offender undertakes to complete an approved drug education and information program.

Section 76 of the DPCS Act provides a presumption that a without conviction bond will be the sentence in certain conditions. It does not preclude the granting of a bond (under section 75 of the Sentencing Act) in situations to which section 76 does not apply, for example, a second offence.

Serious drug offenders

A serious drug offender is a person other than a young offender (i.e. aged under 21 at the time of sentencing) who has been convicted of a drug offence for which they have been sentenced to a term of imprisonment or detention in a youth training centre.

For a person to be described as a ‘serious drug offender’, they must have committed one of the offences listed in clause 4 of schedule 1 of the Sentencing Act. In addition, the offence must relate to an amount of the drug not less than the commercial quantity where the offence is a DPCS Act offence, or a ‘marketable’ or ‘commercial’ quantity where the offence is a Criminal Code offence (see ‘Commonwealth Criminal Code’, below).

The court can sentence a serious drug offender to a term of imprisonment that is longer than the offence itself warrants. This is based on the principle that once a person is regarded as a serious offender, the overriding concern in determining the sentence is the protection of the community. The provisions relating to the sentencing of serious offenders do not apply to matters that are finalised in the Magistrates’ Court.

The Drug Court

The Drug Court sits at the Melbourne, Dandenong, Shepparton and Ballarat Magistrates’ Courts. The Drug Court supervises some offenders with a drug problem by placing them on a Drug and Alcohol Treatment Order (DATO) (s 18X Sentencing Act). The DATO is designed for people who have committed drug-related offences (other than sexual offences or violent offences that cause injury) and are facing prison sentences. Typically, they are people who have committed dishonesty offences such as burglary and theft.

If a person is accepted into the program, a DATO is made. A DATO is a custodial sentence that is not required to be served if various components of the individually tailored treatment program are complied with. Breaches of the order are sanctioned by short periods of imprisonment, with the offender still remaining on the order. The order focuses on drug reduction, lifestyle change, and avoidance of offending rather than zero tolerance. However, further offending is likely to result in a cancellation of the order and the original custodial sentence imposed, minus any imprisonment served as part of the DATO (for sanctions). For more information, contact the Drug Court (see ‘Contacts’).