A detailed guide for drug offences
Drug offences vary in type and seriousness. If you have been charged with a drug offence it is important to understand the process involved, whether you have a defence and the potential penalties you may be facing.
Hiring an experienced drug lawyer to provide you with expert advice as soon as possible is crucial.
What is a drug offence?
A drug offence is an offence which involves the use, possession or trafficking of a drug of dependence. In Victoria the types of drug offences with which a person can be charged are largely set out in the Drug Poisons and Controlled Substances Act (Vic) 1981 (“the Act”). Some of the more common offences with which people are charged under the Act are:
- Using a drug of dependence;
- Possessing a drug of dependence;
- Cultivating a narcotic plant;
- Cultivating a narcotic pant (no less than a commercial quantity);
- Cultivating a narcotic plant (no less than a large commercial quantity);
- Trafficking a drug of dependence;
- Trafficking a drug of dependence (no less than a commercial quantity); and
- Trafficking a drug of dependence (no less than large commercial quantity).
What constitutes a drug of dependence or a narcotic plant is set out in schedule 11 of the Act. Many different drugs are included, such as Ice, Ecstasy, GHB, Ketamine, Heroin and Cocaine.
A person who is charged with possessing a drug of dependence will usually be in a very different position to a person who is charged with trafficking a drug of dependence, so it is important that a person’s offending is characterised correctly.
Whether the prosecution can prove a person is in possession of a drug of dependence or trafficking a drug of dependence, however, is not always immediately clear. This is because a person may be charged with trafficking in a number of different circumstances, such as if they are proven to have:
- prepared a drug of dependence for trafficking;
- manufactured a drug of dependence;
- agreed to sell;
- offered for sale; or
- had a drug of dependence in their possession with the intention of selling it.
Given the Act has regard to quantities, the quantity of a drug found in a person’s possession or linked to a person in some other way is also an important consideration. Schedule 11 of the Act is again important here, as it sets out amounts deemed to be no less than a traffickable quantity, no less than a commercial quantity and no less than a large commercial quantity. The amount linked to a person will therefore impact on what charge and what maximum penalty they will face.
What are the penalties for drug offences?
The penalties for drug offences vary depending on many factors, one of which is the maximum penalty of the offence a person has committed. Below is a list of the more common offences found in the Drug Poisons and Controlled Substances Act (Vic) 1981 and the maximum penalty for these offences:
- Using cannabis - 5 penalty units (e.g. a financial penalty or a community corrections order);
- Using any other drug of dependence - 1 year imprisonment;
- Possessing cannabis - 5 penalty units (e.g. a financial penalty or a community corrections order);
- Possessing a drug of dependence for a reason other than trafficking it - 1 year imprisonment;
- Possessing a drug of dependence for any other reason - 5 years imprisonment;
- Cultivating a narcotic plant for a reason other than trafficking it - 1 year imprisonment;
- Cultivating a narcotic pant for any other reason - 15 years imprisonment;
- Cultivating a drug of dependence in no less than a commercial quantity - 25 years imprisonment;
- Cultivating a drug of dependence in no less than a large commercial quantity - life imprisonment;
- Trafficking a drug of dependence -15 years imprisonment;
- Trafficking a drug of dependence in no less than a commercial quantity- 25 years imprisonment; and
- Trafficking a drug of dependence in no less than a large commercial quantity - life imprisonment.
Once the offending has been appropriately characterised, other important considerations to the penalty a person may receive include:
- their age at the time of the offending;
- whether they have prior convictions, and if so, how many and for what type of offence;
- whether they have an addiction;
- whether that addiction is linked to their offending;
- whether they have a mental illness;
- whether their mental illness is linked with an addiction which linked to their offending;
- whether a person works, studies or has a trade;
- whether a person has supports and what types of supports they have;
- if they have an addiction, whether they have addressed their addiction, and if so, how (e.g. detox, counselling, abstinence etc.);
- if they are found in possession of a drug, the quantity they are found to be in possession of;
- if they have trafficked, what their role in trafficking was (e.g. street level or some higher level); and
- if they have trafficked, what their motivation for trafficking was.
These factors and others are considered by a Magistrate or Judge when determining what penalty to impose.
In some cases, the charge a person has committed will be so serious, such as trafficking in a large commercial quantity of methamphetamine, that the only penalty which is realistically possible is jail. In such instances, the objective will be to put matters to the Court to convince the Court to impose a term of imprisonment that is as short as possible.
In other cases, for example, trafficking 15 grams of cocaine, it may be that providing the Court with evidence of the steps taken by an offender to rehabilitate and reorganise their life after they have been charged may result in them avoiding jail.
Then there are other instances, such as trafficking a gram of cannabis for example, where demonstrating such matters may well result in a person avoiding a criminal record altogether.
Why you need a criminal lawyer in Melbourne
If you have been charged with a drug offence there are many matters to consider, including whether you have a defence and if not what the best possible outcome for you is. An experienced criminal lawyer will be able to look at your case and provide you with advice as to what options are available to you and what course you should take.
Drug offences and their penalties vary between states and territories, which is why a person charged with an offence in Victoria should obtain the services of a criminal lawyer in Melbourne. They will be familiar with the Victorian judicial system and the range of penalties that are likely to be imposed by the Court.
An experienced drug lawyer who has dealt with all types of drug matters can help you get the best possible outcome. They will help you to better understand what’s involved with your case, which can help reduce the stress and confusion many people experience when charged with a criminal offence, and most importantly, they can help you in achieving the best possible outcome.
For criminal lawyers in Melbourne who are experienced in drug offences, contact Stary Norton Halphen.