LSD Possession and LSD Use

The Section and the Act

LSD (Lysergic Acid Diethylamide) sits within the Drugs, Poisons and Controlled Substances Act 1981(Vic) as a drug of dependence, meaning both possessing and using it are criminal offences, possession dealt under Section 73 and use is dealt under Section 75.

This qualifies as a drug of dependence because it appears in Schedule Eleven, which section 4 of the Act relies on to define what this term means.

Maximum Penalty

Possession (s 73): Under this section the maximum penalty for possessing LSD depends on whether the court is satisfied the possession was or wasn’t for trafficking purposes:

• 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 any other purpose the maximum penalty: 400 penalty units or level 6 imprisonment (5 years), or both

Use (s 75)

Using LSD under this section carries a maximum penalty of 30 penalty units or level 8 imprisonment (1 year), 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, LSD, as listed in Schedule Eleven
3. The accused was aware they had the substance in their possession though they did not need to know exactly what it was or that it was illegal.

Most criminal offences require the prosecution to prove every element beyond reasonable doubt but S 73 works differently once trafficking has been alleged. Here the burden shifts, it falls upon the accused to satisfy the court, on the balance of probabilities, that the drugs weren’t held for trafficking purposes.

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

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 of each case, a number of defences may be available, including:

• Factual dispute – It can be argued that the accused never had the possession of or used the substance at all or that the substance wasn’t actually LSD in the first place.
• Honest and reasonable mistake of belief – Believing on a reasonable ground that the substance was something else entirely.
• Wrongful identification – It can be argued that the police have charged the wrong person, and that someone else was responsible for the possession or use.
• Lack of knowledge – It can be stated 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 – It can be challenged that the mental health condition of the accused at that time was such that the accused didn’t understand the nature of what they were doing, or didn’t know what they did was wrong.
• Duress – It can be argued that the accused only acted as they did because they were threatened with serious harm and had no safe way to avoid it other than by committing the offence.

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. Given how small the actual physical quantity of pure LSD tends to be relative to its carrier medium (commonly blotter paper), factual disputes about weight and what has actually been tested and quantified by police can be significant in LSD matters specifically.

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.

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 LSD is set at 20 mg (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 LSD 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