Ketamine Possession and Use

The Section and the Act

Ketamine’s legal status in Victoria comes down to one thing: its listing in Schedule Eleven of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), this listing is what Section 4 relies on to classify ketamine as a “drug of dependence” and once that classification applies, two offence provisions come into play.

• Section 73 deals with possession
• Section 75 deals with use

Maximum Penalty

Possession (s 73)

The penalty for possessing ketamine depends on whether trafficking is in the picture or not. If the court is satisfied, on the balance of probabilities that the ketamine wasn’t held for trafficking purposes, the maximum penalty is 30 penalty units or 1 year’s imprisonment (Level 8) or both.

Where, this cannot be established or where a trafficking purpose is found, the maximum rises sharply to 400 penalty units or 5 years imprisonment (Level 6), or both.

Use (s 75)

Using ketamine attracts a single maximum penalty, without trafficking distinction that applies to possession: 30 penalty units or 1 year’s imprisonment, or both.

Elements of the Offence

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

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, ketamine, as listed in Schedule Eleven
3. The accused knew they were in possession of the substance

Ordinarily, it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt, the accused doesn’t have to prove anything. Section 73 breaks away from that pattern once trafficking is alleged: the accused must instead convince the court, on the balance of probabilities, that trafficking wasn’t the purpose behind the possession. 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:

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:

• Authorisation or licence – Ketamine is recognized as an anaesthetic for veterinary and clinical uses, so it can be stated that the accused held or used it under a valid prescription, veterinary authority or other lawful supply arrangement.
• Factual dispute – It can be argued that the accused never actually had possession of, or used, the substance at all, or that the substance in question wasn’t actually ketamine.
• Honest and reasonable mistake of belief – It can be argued that the accused genuinely and reasonable believed the substance was something other than ketamine.
• Wrongful identification – It can be challenged that the police have identified the wrong person, and that someone else was responsible for the possession or use.
• Lack of knowledge – It can be claimed that the accused had no idea the substance was present at all, which often arises where drugs are found in a shared space such as car, house or apartment used by multiple people
• Mental impairment – It can be argued that there was a mental health condition because of which the accused didn’t understand the nature of what they were doing, or didn’t know it was wrong.
• Duress – It can be argued that the accused only possessed or used the substance because they were threatened with serious harm and had no safe way to avoid it other than by committing the offence.

Ketamine’s legitimate medical and veterinary applications mean authorisation-based defences can arise more frequently here than for many other Schedule Eleven drugs.

Which Court Hears This Matter

Both possession and use charges under ss 73 and 75 are summary offences and are heard in the Magistrates’ Court. Where the trafficking-related penalty applies to a possession charge, the substantially higher maximum (400 penalty units or 5 years) does not change the fact this remains a summary matter, it is not elevated to the County Court.

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 ketamine is set at 0.75 g (pure), which is a relevant figure where an accused seeks to rely on this provision.

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 ketamine 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