Penalty for drug possession
In Victoria, drug possession is considered a serious offence and carries a maximum penalty of 5 years imprisonment. The actual penalty may vary depending on the specific circumstances of the case.
What are the circumstances that affect sentencing of drug possession?
An offence that merely involves a small quantity of cannabis (listed in the schedule of the DPCS act 1981 as 50 grams), where the court is satisfied that there was no trafficking occurring, will be liable to a fine of 5 penalty units.
Furthermore, where the offence involves other drugs or more than the small quantity, and the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking the maximum penalty will be 30 penalty units and up to one year in jail.
How is drug possession alleged?
Possession of drugs tends to occur in two main ways. Firstly, drugs can be found directly in the personal possession of the accused, for example by the accused being observed holding the drugs, or wearing clothes that are found to contain drugs.
Secondly, the drugs can be found to be possessed constructively through property that owned by the by the accused. For example, the drugs may been in a car or a home owned by the accused. This second form of drug possession is allowed as a consequence of the deeming provisions of section 5 of the Drugs Poisons and Controlled Substances Act 1981.
In either case, possession can only be proved if the prosecution can demonstrate that the accused knew about the existence of the drugs. This can include actual knowledge or in some circumstances being reckless to conditions where it must have been inferred by a reasonable person that drugs existed.
The accused will only commit the offence if they have some level of control or authority over the drug, whether it’s physical control or the ability to direct others on what to do with the drugs.
What is the difference between drug possession and drug trafficking?
There are quite a few differences between drug possession and drug trafficking. The most important distinction is that drug trafficking involves the sale of drugs, where as drug possession merely involves the possession of drugs. Drug trafficking is regarded as being a much more serious crime, with maximum sentences that are much higher than drug trafficking.
Notwithstanding the differences between the two charges, it is not uncommon for accused to be charged with drug trafficking when the appropriate charge is drug possession. Consider for example an accused who has been asked to look after a suspicious package by a known drug trafficker, and is told in no uncertain terms that the package is not theirs, but nonetheless that they are to look after the package and return it unopened at sometime in the future. The police raid the home of the accused, and find the package, and tests confirm it contains methylamphetamine.
Is the accused in this circumstance guilty of drug possession or drug trafficking? Well, case law (such as R v Liberti (1991) 55 A Crim R 120) holds that temporary possession where the accused intends to return the drug to the person who is the true owner or who had given it to the accused to hold does not amount to possession for the purposes of supply.
In any other case, the maximum penalty is 400 penalty units and up to five years imprisonment.
Of course, the maximum penalty is rarely imposed, and sentencing involves consideration of mitigating factors and personal circumstances that often serve to reduce sentences considerably.
