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Possess Drug of Dependence

Possess drug of dependence is an offence contrary to section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).

The offence has two elements that the Prosecution must prove beyond reasonable doubt.

  • That the substance in question was a drug of dependence; and
  • That the accused possessed that substance.

It is important for a lot of people to avoid a conviction for drugs as it can impact on their ability to travel. The diversion program is often suitable for possession of small quantities of drugs when it is a first offence.

Penalties Available

There is maximum penalty of 5 penalty units (equates to approx. $750.00) for a person found guilty of possessing a drug of dependence in the case of a small quantity of cannabis. In a case where the court is satisfied possession was not for the purpose of trafficking, the maximum penalty is 1 year imprisonment and/or 30 penalty units (equates to approx. $4550.00). Possess drug of dependence is typically the sort of charge often heard in the Magistrates’ Court.

In the case that the court is satisfied that the possession was for the purpose of trafficking based on either evidence of trafficking or the weight of the drug in your possession, the maximum penalty is not more than 400 penalty units or 5 years imprisonment or both. It is often the case that more significant drug matters with attached trafficking or other drug-related charges are heard in the higher County Court. The circumstances of your case will determine the appropriate venue for your matter to be heard.

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, derivates 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.

Click here to visit 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.2 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.3

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.4

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.5 Awareness that there is real chance that a prohibited substance was possessed can satisfy the mental element required.6

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

  1. 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.

     
  2. 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.

Possible Defences: Possess Drug of Dependence

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.

Sentencing Outcomes in the Magistrates’ Court

The Sentencing Advisory Council has released sentencing statistics for the sentencing of Possess Drug of Dependence in the Magistrates’ Court between July 2011 to June 2014.

Over the three year period:

  • 1,570 cases were before the Court
  • 26.6% of people sentenced received a period of imprisonment
  • 11.2% received a wholly suspended period of imprisonment
  • 4.0% received a partially suspended sentence
  • 23.3% received some form of community based order
  • 22.4% received a fine

The most common length of imprisonment imposed was between 3 and 6 months with 27.3% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing Outcomes in the Higher Courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of Possess Drug of Dependence in the County and Supreme Courts between July 2009 to June 2014.

Over the five year period:

  • 1,200 cases were heard before the higher courts
  • 40.8% of people sentenced received a period of imprisonment
  • 6.9% received a wholly suspended period of imprisonment
  • 1.2% received a partially suspended sentence
  • 10.0% received some form of community based order
  • 35.4% received a fine

The most common length of imprisonment imposed was under 0 – 1 year with 81.4% of persons imprisoned sentenced within that range.

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

To view sentencing decisions by Victorian County Courts for the charge of Possess Drug of Dependence, visit this page.

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



[1]R v Coviello (1995) 81 A Crim R 293 (Vic CCA).
[2]He Kaw Teh v R (1985) 157 CLR 523.
[3]R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120.
[4]He Kaw Teh v R (1985) 157 CLR 523.
[5]Ibid.
[6]R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300.