Heroin Possession and Heroin Use

The Section and the Act

Heroin, known chemically as Diacetylmorphine, sits within the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as one o the substances listed in Schedule Eleven. That listing is what brings heroin within the Act’s definition of a ‘drug of dependence’ under Section 4, and it’s this classification that triggers the possession and use offences that apply to it.

Maximum Penalty

Possession (s 73)

• Not for a purpose relating to trafficking: the court must be satisfied of this on the balance of probabilities. Maximum penalty: 30 penalty units or level 8 imprisonment (1 year), or both
• For a purpose relating to trafficking: maximum penalty: 400 penalty units or level 6 imprisonment (5 years), or both

Use (s 75)

Maximum penalty: 30 penalty units or level 8 imprisonment (1 year), or both

Note that these penalties are unchanged from those applying to possession and use of other Schedule Eleven drugs such as LSD, ketamine, or cocaine, the possession and use provisions do not vary by drug type, only the trafficking thresholds under separate sections do.

Elements of the Offence

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

1. The accused had a substance in their possession (as defined in s 5, which extends to actual physical custody, joint possession, and constructive possession where the accused has control over the item without necessarily having it on their person)
2. The substance was a drug of dependence, here, heroin, as listed in Schedule Eleven
3. The accused knew they were in possession of the substance

Where the trafficking-related penalty is sought, it is the defence that carries the onus of showing, on the balance of probabilities, that the possession was not for a purpose relating to trafficking, this reverses the usual criminal onus and is a distinctive feature of this offence.

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

1. The accused used a substance
2. The substance was a drug of dependence
3. The accused knew, or was reckless as to whether, the substance they used was a prohibited drug

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, or whether the substance was in fact heroin
• Honest and reasonable mistake of belief – for example, as to what the substance was
• Wrongful identification – disputing that the accused was the person who possessed or used the substance
• Lack of knowledge – that the accused did not know they had the substance (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 into the conduct by a genuine threat, leaving no choice.

Given that heroin 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. For possession charges attracting the higher trafficking-related penalty, the primary battleground is often the trafficking purpose itself, since the accused bears the onus of displacing it, this can turn on quantity, packaging, and whether police point to evidence beyond mere possession, such as scales or multiple bags.

Which Court Hears This Matter

Possession and use charges are dealt with entirely within the Magistrates’ Court. Section 73 is an indictable offence triable summarily, and section 75 is a summary offence – in the ordinary course, neither charge gives rise to a pathway to the County Court.

This holds true even where the trafficking-related possession penalty is engaged. Although the maximum penalty in that scenario jumps considerably, up to 400 penalty units or 5 years imprisonment, the offence itself remains classified as summary. The higher penalty ceiling doesn’t change which court has jurisdiction; it simply reflects how much more seriously the law treats possession where a trafficking purpose is established.

Section 76 of the Act also provides for adjourned bonds in certain circumstances involving a small quantity of a drug listed in Part 3 of Schedule Eleven. Under Schedule Eleven, the small quantity threshold for heroin is set at 1.0 g (pure), which is a relevant figure where an accused seeks to rely on this provision. The Magistrates’ Court also operates the Court Integrated Services Program (CISP) and drug treatment orders in some circumstances, which may be relevant where the possession or use is connected to substance dependency.

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 heroin specifically. Possession and use matters resolved in the Magistrates’ Court are overwhelmingly 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