Possessing Controlled Drugs

Published Updated November 28, 2018 · Updated Updated October 29, 2020

This is a Commonwealth offence that is laid in situations where a person possesses a substance which is identified as a controlled drug.

Which court will the case be heard in?

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.¹ This offence is ordinarily heard in Victorian higher courts.

_{[1] Commonwealth Criminal Code Act 1995 (Cth) s 308.1(3)}

Meaning of Possessing Controlled Drugs

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:
1. the person possesses a substance; and
2. the substance is a controlled drug, other than a determined controlled drug.
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
The fault element for paragraph (1)(b) is recklessness.

Legislation

The relevant legislative provision for this offence is section 308.1 of the Commonwealth Criminal Code Act 1995 (Cth) (the Act).

Elements of the offence

For 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.

Element 1: The accused is in possession of a substance
‘Possess’ a substance means²:

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.

Element 2: The substance is a controlled drug
A ‘controlled substance’ is a substance, other than a growing plant, that is³:

Listed by a regulation as a controlled drug⁴; or
A drug analogue of a listed controlled drug⁵; 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).

The accused must be ‘reckless’ as to whether the substance is a controlled drug for this element to be satisfied.⁶ This will be the case if the accused is aware of a substantial risk that the substance is a controlled drug and, given that there is a substantial risk that the substance is controlled drug, it is unjustified to have possession of it.⁷

“Was the substance a controlled drug?”

_{[2] Commonwealth Criminal Code Act 1995 (Cth) s 72.36

[3] Commonwealth Criminal Code Act 1995 Cth) s 301.1

[4] See Criminal Code Regulations 2002 (Cth) Schedule 3 for a list of controlled drugs.

[5] See Commonwealth Criminal Code Act 1995 (Cth) s 301.9 for the definition of ‘drug analogue’.

[6] Commonwealth Criminal Code Act 1995 (Cth) s 308.1(2)

[7] Commonwealth Criminal Code Act 1995 (Cth) s 5.4}

Defences

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.

Depending on the circumstances, the following defences may also be available:

Mental impairment⁸
Duress⁹

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?

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

_{[8] Commonwealth Criminal Code Act 1995 (Cth) s 7.3

[9] Commonwealth Criminal Code Act 1995 (Cth) s 10.2}

Maximum penalty for section 308.1 of the Commonwealth Criminal Code Act 1995

The maximum penalty for (s308.1 of the Commonwealth Criminal Code Act 1995) is 400 penalty units (a $84,000 fine) or imprisonment for 2 years, or both.¹⁰

The value of a penalty unit will automatically increase in line with the Consumer Price Index from July 2020, and every 3 years after.¹¹

_{[10] Commonwealth Criminal Code Act 1995 (Cth) s 308.1
[11] 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/>.}

Sentencing

Sentencing in the higher courts

The 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

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.¹³

_{[12] 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>

[13] The Sentencing Advisory Council, ‘Suspended Sentences’, accessed 17/11/2018 <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence>}

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