In Victoria illegal drugs are called drugs of dependence. Illegal plants are called narcotic plants.

 The definition of “drug of dependence” extends to include substances that are chemical analogues of, or chemically related to, listed drugs of dependence.

 This may mean that new synthetic type drugs that are chemically derived from or related to a drug of dependence will also be illegal, even if it is not specifically listed in the schedule.

Knowledge of the particular drug

For offences involving drugs of dependence or narcotic plants in Victoria the police generally have to prove that you knew or should have known that the drugs or plants were drugs of dependence or narcotic plants.

They don’t need to prove you knew which particular drug or plant you had in your possession. This means, for example that you can be charged with trafficking in speed, even if you thought you only had a legal synthetic substance.

If you try to pass off a substance as a drug of dependence for the purpose of supply, you can still face the same penalties as if it were a drug of dependence. This means, that you can be charged with suppling cocaine even if you are just trying to rip someone off, for example, by selling him or her icing sugar.

Mixtures of drugs and trafficking

A mixture of substances which contains an amount of a drug of dependence will be regarded as an drug of dependence. This means that if you sell cocaine cut up with washing powder you can still be charged.

Rules for determining total quantities of different drugs or mixtures of drugs for the purpose of determining which offence you will be charged with, which Court your case will be heard in, and what penalty you face on conviction, are very complicated.

Victoria uses a mixed weight system of calculating threshold quantities for trafficking.

Victorian police and prosecutors take the total weight of the seized drug sample (e.g., pills, tablets, caps, points, joints, mixtures, or preparations) to be the total quantity of the drug of dependence when charging you.

The purity of the drugs is not relevant when determining what quantity of drug you possess and therefore what charge you face in court (e.g., possession for personal use or trafficking).

This means that it doesn’t matter how pure your drugs or drug mixtures are. The prosecution only has to show that the weight of the pills, tablets, caps, points, joints, or other mixture is greater than the trafficable quantity for you to be charged with trafficking.

Does the harm of the drug matter?

No. The perceived harm potential of a drug is NOT relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic). A court might take your motives and aggravating circumstances (see ‘Aggravating circumstances’ section below) into account when sentencing you for an offence, but certain drugs of dependence should not be treated as more or less harmful than others.

For example, if you possess 5g of heroin, and your friend possesses 5g of cocaine in the same circumstances, you should both be subject to the same charge of trafficking and receive a similar penalty. You should not be punished more severely for possessing drugs like heroin or ice, which are considered to be ‘really harmful’, ‘more evil’ or ‘harder drugs’ than for ‘party drugs’ like cocaine or ecstasy.

You should not be punished more severely for some drugs than for others based only on a ‘scale’ of the perceived harm of different drugs.

General charges for being involved in a drug offence

Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:

• taking part in an offence if you are involved in the offence even if you don't make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);
• being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by being security or a guard or a look out for a drug deal);

• aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., tell someone they can use your shed to grow cannabis in); or
• conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.

Generally police will not charge you with additional charges such as being an accessory to supply or inciting supply if you are a user and arrange to score off a dealer for personal use. However, you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

It is an offence to possess a drug of dependence unless you are authorised by law to possess it.

Proving possession

There are three elements relevant to proving possession: knowledge, custody and control:

• Knowledge means that you must know that the substance is a drug and that it is in your custody;
• Custody usually means having the drugs in your physical possession (for example, in your pocket or wallet or under you pillow). However, custody can also extend to include such places as your house or car;
• Control means that you have the right to do something with the drugs (for example, keep or use them).

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, the Court will infer you knew what it was.

Knowledge can be based on personal observation if you see the drug or information from another person, telling you that a package they have given you contains methamphetamine. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.

However, there will be circumstances where, if you don't admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.

Do not admit to possessing drugs without speaking to a lawyer!

Custody and joint possession

In other States and Territories if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned had and custody or control of the drugs, unless people make admissions.

However it is not impossible for police to prove that possession was jointly held because of the rule that possession is deemed if a person has order or disposition of the drugs under a joint arrangement, where you and your flatmates have a stash that you all have access to. Victoria has deemed possession laws which means that shared drugs can be easily attributed to people who have any form of control, even if it is not exclusive.

Custody and deemed possession

In Victoria you can be charged with possession of a drug of dependence if the drug is physically located anywhere on land or premises occupied by you; or is used, enjoyed or controlled by you in any place. This means that you can still be charged and convicted without the prosecution having to prove that you had knowledge about the presence of drugs on your premises.

This rule is called 'deemed possession'. It creates a presumption which will mean that if police find any drugs in your property or premises the court will automatically believe the drugs are yours unless you can prove that you didn't know about them.

This means it will be much harder for you to prove to the Court that drugs weren't in your possession if they are in your house or shed or garden, even if they are shared, or belong to someone else.

Possession without physical custody

In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.

If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.

Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don't have the keys with you at that time, police may not be able to show that you had custody and control.

You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.

If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.

Control

Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.

However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.

Temporary possession

Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.

If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the  'Carey defence'.

Penalties

Possessing a drug of dependence without authorisation or prescription is an offence.

                Maximum penalty: $4,560 (30 p.u.) and/or 1 year imprisonment.[1]

Possessing a drug of dependence for the purpose of trafficking (sale or supply) is an offence.

                Maximum penalty: $60,800 (400 p.u.) and/or 5 years imprisonment.[2]

Possession of less than 50 grams of cannabis, where you can prove that the cannabis was only for personal consumption is a less serious offence.

                Maximum penalty: $760 (5 p.u.).[3]

1]  s 73(1)(b) Drugs, Poisons and Controlled Substances Act 1981

If you self-administer (use) a drug of dependence without authorisation you are committing an offence. It is illegal to inject another person even if they have asked you to or given you consent.

It is also an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine, and methadone without following the doctor's or pharmacist's directions for use. This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose.               

Penalties

Using a drug of dependence other than cannabis is an offence.

                Maximum penalty: $4,560 (30 p.u.) fine and/or 1 year imprisonment.[1]

Using cannabis is an offence.

                Maximum penalty: $760 (5 p.u.).[2]

Administering, or attempting to administer a drug of dependence (including cannabis) to another person is an offence.

                Maximum penalty: $4,560 (30 p.u.) fine and/or 1 year imprisonment.[3]

There is a possible alternative charge under the general criminal law where you administer a substance (such as heroin) that is capable of altering bodily functions (by causing sleep or unconsciousness) to another person without that person's consent.

This offence will also be proved if it was shown that you were reckless as to whether the other person consented to taking the drug. The court will presume that a person did not consent if it is likely that if they had known the risks of taking the substance they wouldn't have consented.

                Maximum penalty: 5 years imprisonment.[4]

Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Remember that any statements you make to police form part of the evidence that can be used against you. No conversation with police is ‘off the record’. For more information on your legal rights see the section on general legal information.

If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don't admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.

Do not admit to possessing drugs without speaking to a lawyer!

If you administer a prohibited drug to another person who subsequently dies from an overdose ('OD') you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Police will not normally attend an overdose unless:

• they are requested to do so by ambulance paramedics or medical personnel (because ambulance officers cannot control people present at the scene or due to a threat of violence);
• a death has occurred or there are suspicious circumstances (like attempted murder); or
• they were the first on the scene or another person or witness called them.

Police guidelines direct police who do attend an overdose to use their discretion not to charge people at the scene or the person who overdoses with administration or other minor drug offences such as possession.

Obtaining

It is an offence in Victoria to obtain or attempt to obtain drugs of dependence by lying or making false representations to a doctor or by forging a prescription.

                Maximum penalty: $3,040 (20 p.u.) and/or imprisonment for 1 year.[1]

It is an offence in Victoria to obtain or attempt to obtain drugs of dependence by lying or making false representations to a doctor or by forging a prescription.

                Maximum penalty: $3,040 (20 p.u.) and/or imprisonment for 1 year.[1]

It is illegal to traffic in a drug of dependence without lawful authority.

It is also illegal to possess a drug of dependence for the purpose of trafficking it to another person. There is no separate offence of supply in Victoria (other than supply to a child) or of manufacturing drugs of dependence. 

In Victoria, you can be charged with trafficking if you-

• prepare a drug of dependence for sale;

• manufacture a drug of dependence;

• sell, exchange, agree to sell, offer for sale a drug of dependence; or

• have in your possession a drug of dependence with the intention of selling it.

Because sharing a deal or helping someone score is part of drug-using culture, many users act as suppliers from time to time. A charge of trafficking can even rest on an offer to score on another person’s behalf.

If a person is found in possession of a trafficable quantity of drugs, an intention to traffic will be presumed. In this case the court will automatically believe that you intended to sell the drug in the absence of proof that you didn't intend to traffic the drug, which may be hard to provide.

If you are a heavy user and the drugs are for personal use only, it may be advisable to make a statement to investigating officers to say that at an early stage.

It is also an offence to help another person to traffic drugs of dependence or plan with them to traffic. This is called conspiracy or aiding and abetting an offence.

Penalties

Trafficking in a large commercial quantity of a drug of dependence is an offence:

                Maximum penalty: $760,000 (5000 p.u.) and/or imprisonment for life (baseline sentence 14 years).[1]

Trafficking in a commercial quantity of a drug of dependence is an offence:

                Maximum penalty:  imprisonment for 25 years.[2]

Trafficking in a trafficable quantity of a drug of dependence is an offence:

                Maximum penalty: imprisonment for 15 years.[3]

It is an offence to intentionally cause a person to traffic in a drug of dependence by threatening them or using violence against them.

                Maximum penalty: Imprisonment for 5 years.[4]

It is also an offence to be in possession of instructions for trafficking in a drug of dependence without a reasonable excuse.

                Maximum penalty: $91,200 (600 p.u.) and/or imprisonment for 5 years.[5]

It is also an offence to publish instructions for trafficking in a drug of dependence without a reasonable excuse.

                Maximum penalty: $182,400 (1200 p.u.) and/or imprisonment for 10 years.[6]

Allowing a premises to be used for trafficking is an offence.

Maximum penalty: imprisonment for 5 years.[7]

The maximum penalties set out for trafficking in different quantities of commonly used drugs of dependence are set out in a table below.

It is an offence to cultivate a narcotic plant. Narcotic plants are plants grown for the purpose of extracting or harvesting drugs of dependence. A narcotic plant includes any cuttings even if they don't have roots.

Cultivating a narcotic plant includes:

• sowing a seed of a narcotic plant;
• planting, growing, tending, nurturing or harvesting a narcotic plant; or
• grafting, dividing or transplanting a narcotic plant.

Other actions like watering the plant or fertilising it will likely be considered cultivation.

If you can prove to the court that you did not know or suspect that the plant you cultivated was a narcotic plant, you may be able to avoid conviction.

It is also an offence to help another person to cultivate narcotic plants or plan with them to cultivate narcotic plants.

Penalties

Cultivating a large commercial quantity of a narcotic plant is an offence:

                Maximum penalty: $760,000 (5000 p.u.) and/or imprisonment for life.[1]

Cultivating a commercial quantity of a narcotic plant is an offence:

                Maximum penalty: imprisonment for 25 years. [2]

Cultivating a traffickable quantity of a narcotic plant with intention to traffic it is an offence:

                Maximum penalty: imprisonment for 15 years. [3]

Cultivating less than the commercial quantity of a narcotic plant without intention to traffic it (i.e., you only cultivated it for personal use) is an offence:

                Maximum penalty: $3,040 (20 p.u.) and/or imprisonment for 1 year.[4]

The maximum penalties set out for cultivation in different quantities of narcotic plants, with intent to traffic, are set out in a table below.