Possessing Controlled Drugs
– section 308.1 of the Commonwealth Criminal Code Act 1995
This is a Commonwealth offence that is laid in situations where a person possesses a substance which is identified as a controlled drug.
Although this is a Commonwealth offence, this charge may also be heard in a State court and the accused may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory that involved the possession or use of a controlled drug.5 This offence is ordinarily heard in Victorian higher courts.
Examples of Possessing Controlled Drugs
- A person possesses heroin.
- A person possesses cannabis or cannabis resin.
- A person possesses methylamphetamine.
What is the legal definition of Possessing Controlled Drugs?
- A person commits an offence if:
- the person possesses a substance; and
- the substance is a controlled drug, other than a determined controlled drug.
- The fault element for paragraph (1)(b) is recklessness.
LegislationThe relevant legislative provision for this offence is section 308.1 of the Commonwealth Criminal Code Act 1995 (Cth) (the Act).
Elements of the offenceFor a person to be found guilty of this offence, the prosecution must prove the following elements beyond a reasonable doubt:
- The accused is in possession of a substance;
- The substance is a controlled drug.
‘Possess’ a substance means6:
- Receiving or obtaining possession of the substance;
- Having control over the disposition of the substance (whether or not the substance is the custody of the person);
- Having joint possession of the substance.
A ‘controlled substance’ is a substance, other than a growing plant, that is7:
- Listed by a regulation as a controlled drug8; or
- A drug analogue of a listed controlled drug9; or
- Determined by the AFP Minister as a controlled drug under section 301.13 of the Act (which deals with emergency determinations of serious drugs).
“Was the substance a controlled drug?”
Defences to this charge are ordinarily based on some element of the offence not being made out. These defences include:
- The accused is not in possession of a substance;
- The substance is not a controlled drug.
Questions in cases like this
- Is the person in possession of a substance?
- Is the substance a controlled drug?
- Have the police tested the substance and established that the substance is a controlled drug, or are they merely alleging that the substance is a controlled drug without any testing having taken place?
Sentencing in the higher courtsThe Victorian higher courts heard 15 charges of Possess a Controlled Drug from 1 July 2011 to 30 June 2016. These charges resulted in the following sentences:
- Imprisonment – 26.7%
- Partially Suspended Sentence – 26.7%
- Fine – 20.0%
- Wholly Suspended Sentence – 13.3%
- Community Correction Order – 6.7%
- Adjourned Undertaking/Discharge/Dismissal – 6.7%12
Other important resources
- SACStat Higher Courts – Criminal Code Act 1995 (Cth) : s 308.1(1) – possess a controlled drug
- VCC summaries – federal drug offences: Sentencing decisions from 1 January 2016 to 30 November 2017, arranged by severity of total effective sentence
 Commonwealth Criminal Code Act 1995 (Cth) s 7.3
 Commonwealth Criminal Code Act 1995 (Cth) s 10.2
 Commonwealth Criminal Code Act 1995 (Cth) s 308.1
 Australian Government, ‘Commonwealth Penalty Units Increase’, accessed 17/11/2018 <https://www.ato.gov.au/Business/Large-business/In-detail/Business-bulletins/Articles/Commonwealth-penalty-units-increase/>.
 Commonwealth Criminal Code Act 1995 (Cth) s 308.1(3)
 Commonwealth Criminal Code Act 1995 (Cth) s 72.36
 Commonwealth Criminal Code Act 1995 Cth) s 301.1
 See Criminal Code Regulations 2002 (Cth) Schedule 3 for a list of controlled drugs.
 See Commonwealth Criminal Code Act 1995 (Cth) s 301.9 for the definition of ‘drug analogue’.
 Commonwealth Criminal Code Act 1995 (Cth) s 308.1(2)
 Commonwealth Criminal Code Act 1995 (Cth) s 5.4
 SACStat Higher Courts, ‘Possess a controlled drug’, accessed 17/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_CRIMCODE_308_1_1.html>
 The Sentencing Advisory Council, ‘Suspended Sentences’, accessed 17/11/2018 <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence>