Possess Drug of Dependence

Published Updated May 20, 2019 · Updated Updated July 28, 2022

Possess Drug of Dependence is an offence under section 73 of the Drugs, Poisons and Controlled Substances Act 1981. If you have been charged with this offence, we can help you.

Police Interview

The police may want to question you if you have been charged with possession of a drug of dependence. You understandably might be nervous about talking to the police or be wondering if you need to talk to them at all. We can give you advice about your options in relation to the police interview and answer any queries you have about the process.

Pleading Not Guilty

We have an intimate knowledge of what can be defined as a drug of dependence. You may think you have been wrongly charged and need some further advice. We can assist you with this charge and answer questions such as:

What if I have a prescription for the drug police have charged me with?
It was only a tiny amount, can police still charge me?
the drugs police found were another substance, can it be tested?

Pleading Guilty

If you decide to plead guilty to this charge, we can assist you. We deal with this offence on a regular basis and can put together a plea that puts your best case forward. For example, if you have previously had a problem with drug addiction but have worked hard to overcome it, we can put that material into a plea.

Sentencing

Sentencing in the higher courts of Victoria

Sentencing in the Magistrates’ Courts of Victoria

Sentencing Statistics Pie Chart for Possess Methylamphetamine in the Magistrates' Courts

Which court will the case be heard in?

This charge is usually dealt with in the Magistrates’ Court.

Examples of Possess Drug of Dependence

A person found with a small bag of an illicit drug in their pocket or bag
A person found with a small bag of an illicit drug in their car
A person found with a small quantity of illicit drug in their home

What is the legal definition of Possess Drug of Dependence?

Drug of Dependence
Section 4 of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’) defines a drug of dependence as a natural or synthetic drug listed in Schedule 11 to the Act.

Possession
There are three ways the prosecution can prove that an accused possessed a drug of dependence:

By demonstrating that the accused intentionally had the drug in his/her custody, or under his or her control;¹
By relying on the deeming provision in section 5 of the DPCSA and proving that the illicit drug was in the car, or on land or premises occupied and controlled by the accused; or
By relying on the deeming provision in the DPCSA, and proving that the accused used, enjoyed or controlled the drug.

Legislation

Possess drug of dependence is an offence under section 73 of the DPCSA.

Elements: Possess Drug of Dependence

We will look at each element in detail:

That the substance in question was a drug of dependence

Section 4 of the Drugs Act outlines substances which are said to be a drug of dependence. This includes:

Any form of the drugs specified in Parts 1 and 3 of Schedule Eleven to the Act, whether natural or synthetic;
The derivatives and isomers of the drugs specified in Parts 1 and 3 of Schedule Eleven to the Act;
The salt of the abovementioned drugs, derivatives and isomers;
Any substances that are included in the classes of drugs specified above; and
The fresh or dried parts of the plants specified in Part 2 of Schedule Eleven.

View Schedule 11 of the Drugs Act.

Further, unusable portions of a drug (such as the stems, roots and stalks of the cannabis plant) are still considered to be drugs of dependence, so long as they fit within the definition specified by section 4.¹

That the accused possessed that substance

The Prosecution can prove Possess Drug of Dependence for the purposes of this element by relying on the common law definition of possession. Common law possession involves the physical control with an intent to possess the drug allegedly possessed.

The conduct element

This requires the Prosecution to prove that a drug of dependence was in the Accused possession or physical in their control. A person does not need to be carrying the drug on their person to satisfy this element. They do however have to have custody or control over it. It is not uncommon for substances to be found in a person’s room whilst a warrant is executed for unrelated matters or even in a person’s car. In the first instance, a bedroom is a location where a person has manual custody and in the second, the substance is within reach of the Accused. This is said to be in their custody and within their control.

“Was the drug in your custody or control?”

The mental element

In determining the mental element required, an inference can be drawn from all of the evidence available as to the Accused ’s intention.

Common law possession requires the prosecution to prove that the accused intended to possess a drug of dependence. The prosecution does not need to prove that the accused intended to possess the particular drug in question, they only need to prove that the accused intended to possess a drug of dependence.

Intention can be shown in variety of ways including admission by the Accused. It is also possible to infer an intention to possess a drug of dependence from proof that the accused knew of the existence and nature of the substance possessed. Awareness that there is real chance that a prohibited substance was possessed can satisfy the mental element required.

Defences

Often defences revolve around the issue of intent as to whether the accused intended to possess the drug in question. There are also often factual disputes about the circumstances in which the drugs were possessed. Other defences available include factual dispute, duress, wrongful identification, mental impairment, honest and reasonable mistake or belief or necessity may apply.

Questions in cases like this

Was the substance a drug?
Where was the substance found?
Was the substance found in your possession?

In a trial, the questions a judge will ask the jury to consider are:

Was the substance in question a “drug of dependence”?
(Consider – [insert name of drug] a drug of dependence.
If yes, then he will ask question 2.
If no, then the accused is not guilty of Possess Drug of Dependence.
Did the Accused possess the substance in question?
- 2.1 Was the substance physically in the Accused’s custody, or otherwise under the Accused’s control?
  If yes, then go to 2.2
  If no, then the accused is not guilty of Possess Drug of Dependence.
- 2.2 Did the Accused intend to possess the drug of dependence?
  (Consider – Can you infer from all the evidence that the Accused intended to have custody or control of a drug of dependence?
  If yes, then the Accused is guilty of Possess Drug of Dependence.
  Is no, then the Accused is not guilty of Possess Drug of Dependence.

Maximum penalty for section 73 of the Drugs, Poisons and Controlled Substances Act 1981

The maximum penalty for Possess Drug of Dependence (s73 of the Drugs, Poisons and Controlled Substances Act 1981) is a fine of up to 30 penalty units (around $5,000) or 1 year imprisonment.

Other important resources

Check out some of the criminal cases we’ve defended in court involving the charge of Possess Drug of Dependence:

_{[1] He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281.}

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