Author: Bill Doogue
Practice area: commonwealth offences
Bill is a founding Director of Doogue + George, ranked by Doyle's Guide as a Preeminent Criminal Defence Lawyer in Victoria (2026) and an LIV Accredited Criminal Law Specialist since 1998 with over 30 years of experience in complex criminal and corporate matters. His depth of experience in this area means clients receive accurate, considered advice.
View full profile →Bill authored this content and last revised it for accuracy on 6 August 2026.
What is the offence of Possessing Controlled Drugs?
Possessing Controlled Drugs is a Commonwealth offence under section 308.1 of the Criminal Code Act 1995 (Cth). It concerns the unlawful possession of substances classified under federal law as controlled drugs, including listed substances and certain drug analogues regulated by the Commonwealth.
Key points
- Prosecution must prove: Possession of a substance and that it was a controlled drug.
- Type of conduct: Physical custody, control over disposition, or joint possession.
- Court level: Ordinarily heard in Victorian higher courts.
The maximum penalty for Possessing Controlled Drugs is 400 penalty units ($83,640 as at 2026-27) or imprisonment for 2 years, or both.
Common defences may include Lack of possession, substance not being a controlled drug, mental impairment, or duress.
Have you been accused of Possessing Controlled Drugs?
Police Interview
Before attending a Police interview or speaking with Police regarding an allegation of Possessing Controlled Drugs, it is critical that you obtain legal advice to understand your rights and options.
Many people mistakenly believe that providing their side of the story will resolve the matter or lead to the charges being withdrawn. This is not the case. A Police interview is not an opportunity to explain yourself—it is a key part of the Police investigation process.
Speaking to an experienced criminal lawyer before participating in an interview ensures that you are fully informed and protected from saying or doing anything that could later be used against you.
Pleading Not Guilty
If you want to fight a charge of Possessing Controlled Drugs, we can conduct our own investigation and carefully examine the Police brief of evidence. Our lawyers are dedicated defence lawyers and will look for flaws in the prosecution case against you.
Our lawyers are expert cross examiners and will meticulously pick apart the prosecution case through careful and deliberate cross examination.
Pleading Guilty
If you want to plead guilty to Possessing Controlled Drugs, we can work with you to prepare for the best possible outcome. There is a lot of material that can be gathered for a plea hearing, including possible medical reports and character references. We work closely with you to understand your background so we can best present your story to the court in a plea hearing to secure a fair outcome.
Sentencing
Sentencing in the higher courts of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Criminal Code Act 1995 (Cth) s 308.1 — 16 charges, higher courts, 1 July 2019 – 30 June 2024.
| Outcome | % |
|---|---|
| Imprisonment | 43.8% |
| Fine with conviction | 25.0% |
| Community Correction Order | 18.8% |
| Other | 12.5% |
The data indicates that imprisonment is a significant possibility at this level, although courts may also impose community-based supervision or financial penalties depending on the circumstances. Sentencing will depend on factors such as the quantity of the drug, the surrounding circumstances and the offender’s prior history. Careful preparation and experienced legal representation can influence the outcome.
Sentencing in the Magistrates court of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Criminal Code Act 1995 (Cth) s 308.1 — 19 charges, Magistrates’ Court, 1 July 2018 – 30 June 2023.
| Outcome | % |
|---|---|
| Fine with conviction | 36.8% |
| Diversion program | 31.6% |
| Community Correction Order | 15.8% |
| Bond without conviction | 15.8% |
The data indicates that custody does not appear in the recorded outcomes and courts often deal with this offence through diversion, fines or supervisory orders. When determining the appropriate outcome, the court will consider factors such as the quantity of the drug, prior history and any steps taken toward rehabilitation.
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.
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.
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?
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:
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.
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/$83,640 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
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
FAQ About Possessing Controlled Drugs
Can you be charged if the drugs were not physically on you?
What does “control over disposition” mean in a drug possession case?
How are drug analogues treated under Commonwealth law?
What role do emergency determinations play in controlled drug offences?
Can Commonwealth drug possession offences be prosecuted in State courts?
[1] Commonwealth Criminal Code Act 1995 (Cth) s 308.1(3)
[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
[8] Commonwealth Criminal Code Act 1995 (Cth) s 7.3
[9] Commonwealth Criminal Code Act 1995 (Cth) s 10.2
[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/>.
