Amphetamines Possession and Amphetamines Use

The Section and the Act  

Amphetamine’s legal status principally is governed by the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Section 4 of the act defines “Drug of dependence”, and schedule Eleven of the Act identifies the primary substances falling within the definition. Once the given classification applies, the two given offence provisions come into play  

• Section 73 which deals with possession 

• Section 75 which deals with use 

Maximum Penalty 

Possession (s 73) 

The penalty for possession of Amphetamine depends on whether the drug was possessed for the purpose trafficking or not. If the court is satisfied, on the balance of probabilities that the Amphetamine wasn’t possessed for trafficking related purposes, the maximum penalty is 30 penalty units or 1 year’s imprisonment (Level 8) or both. 

Where, the accused fails to establish to court that possession was not related to trafficking, the maximum penalty is 400 penalty units or level 6 imprisonment (5 years), or both. 

Use (s 75) 

Using Amphetamine under section 75 attracts maximum penalty without trafficking related penalty distinction as applies to possession: 30 penalty units or 1 year’s imprisonment, or both. There is no trafficking related penalty escalation for the use offence. 

Elements of the Offence 

Possession (s 73): The prosecution must prove, beyond reasonable doubt that: 

• The accused possessed the substance (as defined in s 5) including actual physical custody, joint possession or constructive possession where the accused has requisite control over the item without necessarily having it. 

• The substance was a drug of dependence, here, Amphetamine, as listed in Schedule Eleven 

• The accused had the knowledge of the substance in possession and its presence. accused had actual or constructive custody of or control over the substance, with knowledge of its presence and an intention to possess it. 

Ordinarily, the prosecution bears the burden to prove the guilt of the accused beyond reasonable doubt, the accused doesn’t have to prove anything. However, s73 contains a reverse onus provision concerning the purpose of possession breaks away from that pattern once trafficking is alleged. The accused must instead satisfy the court, on the balance of probabilities, that trafficking wasn’t the purpose behind the possession and the possession wasn’t related to Trafficking. This shift in who carries the burden is one of the unusual features of this offence. 

Use (s 75): The prosecution must prove, beyond reasonable doubt: 

• The accused used a substance 

• The substance was a drug of dependence, namely Amphetamine. 

• The accused knew, or was reckless as to whether, the substance they used was a prohibited Drug. 

• The use was without lawful authority.  

Defences 

Depending on the facts, a number of defences may be available, including: 

Factual dispute – challenging whether the accused actually possessed or used the substance, the substance actually belonged to the accused or was under Accused’s   physical control or whether the substance was in fact Amphetamine. 

Honest and reasonable mistake of belief – Challenging and arguing that the accused honestly and reasonably believed that the substance was something other than Amphetamine. 

Wrongful identification Disputing that the accused was the person who possessed or used the substance. 

Lack of knowledge or intent That the accused did not know they had the substance present with them or had no knowledge of it. (for example, where it belonged to someone else and was found in a shared space, car, or residence.) 

Mental impairment – that the accused’s mental condition at that relevant time affected the capacity to understand or control their actions. 

Duress – the accused was forced and compelled into possession or use of the substance by a genuine threat, leaving no choice. For trafficking related possession, attracting higher penalty under s 73, it is very important for the accused satisfy the court, on the balance of probabilities, that possession was not for  any purpose related to trafficking. 

Given that amphetamine possession and use charges are frequently connected to dependency, courts also have regard to therapeutic and diversionary pathways in  appropriate cases, which can be a relevant consideration alongside the strict legal defences above.  

Which court hears this matter 

The possession of Amphetamine under s 73 and use of amphetamine under s 75 of  Drugs, Poisons and Controlled Substances Act 1981 (Vic) are dealt in the Magistrates’  Court of Victoria. While s 73 is an indictable offence triable summarily in the  Magistrates’ Court, s 75 is a summary offence both of which are tried and triable in the  Magistrates’ Court. The case remains the same even in the scenarios of Higher  trafficking related penalty under s 73. Although the maximum penalty rises to 400  penalty units or 5 years imprisonment in that scenario, s73 remains an indictable offence triable summarily in the Magistrates’ Court. The higher penalty does not alter the classification of the offence or the court’s jurisdiction.. Section 76 of the Act provides for an Adjournment Bond in specific circumstances including small quantity of drug listed in schedule 11 part 3 of the Act. Substance like amphetamine the small quantity is 0.75 g pure, which can become relevant for the accused if they seek to rely on s 76 subject to other statutory requirements. In the cases where substance dependence can be a significant factor Magistrates’ Court also provides for diversionary and treatment-oriented pathways. 

SAC Statistics 

The Sentencing Advisory Council’s SACStat database allows querying of Magistrates’ Court outcomes for s 73 (possession) and s 75 (use) matters generally, though its published data is not broken down by individual drug type such as Amphetamine specifically. Possession and use matters resolved in the Magistrates’ Court are dealt with by way of fine, diversion, or non-custodial orders, with imprisonment being uncommon for simple possession or use absent aggravating factors such as extensive prior history or possession of a quantity approaching the trafficking threshold. 

Frequently Asked Questions