Possession of Precursor Chemicals

Possession of Precursor Chemicals

‘Possession of Precursor Chemicals’ is an offence contrary to s 71D of the Drugs, Poisons and Controlled Substances Act 1981 (the Act).
This offence is dealt with in the Magistrates’ and County Courts.
Examples of Possession of Precursor Chemicals
  • A person having precursor chemicals in their garage
  • A person storing precursor chemicals in an unused toilet block
  • A person found with precursor chemicals in the boot of their car
What is the legal definition of Possession of Precursor Chemicals?
The Prosecution must demonstrate that the accused intentionally had the chemical in his/her custody, or under his or her control.1

This offence can be found on s 71D of the Drugs, Poisons and Controlled Substances Act 1981 (the Act).

Elements of the Offence
To prove this offence the Prosecution must show that (1) the accused possessed a prescribed quantity of a chemical without lawful excuse and (2) that chemical was a prescribed precursor chemical.

“Can the Prosecution prove that the chemicals were used to manufacture illicit drugs?”

[1] He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281.
Defences to this charge can be:

  • The substance that the Police have seized was not a prescribed precursor chemical;
  • Factual disputes about where and when materials were seized;
  • Disputes as to intention to possess.
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.

Questions in cases like this
  • Was there another reason for storing the chemical?
  • Is there any evidence that the chemicals were used to produce an illicit drug?
  • Can the Prosecution prove ‘possession’?

The maximum penalty for Possession of Precursor Chemicals (s71D of the Drugs, Poisons and Controlled Substances Act 1981) is a fine of 600 penalty units (around $100,000) or 5 years imprisonment.

Sentencing in the higher courts
There were 84 charges (14 cases) of Possession of Precursor Chemicals that were heard in the higher courts of Victoria from 1 July 2013 to 30 June 2018. These charges resulted mostly in Imprisonment (64.3%) and Community Correction Order (25%). Other sentences also included Wholly Suspended Sentence (4.8%), Fine (3.6%), and Partially Suspended Sentence (2.4%).

Of the charges that led to prison terms, majority were sentenced to a term that was between 1 and 2 years (46.3%). The longest term imposed was between 2 and 3 years but was least imposed at only 3.7%.

For Community Correction Orders (CCO), majority resulted in terms that were somewhere between 2 and 3 years (47.6%). The longest CCO terms were between 3 and 4 years but these were imposed in only 9.5% of the charges that led to CCOs.2

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.3

[2] Sentencing Advisory Council. “SACStat Higher Courts – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71D – possess a precursor chemical.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_9719_71D.html (accessed August 19, 2019).
[3] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed August 19, 2019).