Use of a Drug of Dependence
‘Use a Drug of Dependence’ is an offence contrary to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (the Act).
- Authorisation or license;
- Factual dispute;
- Honest and reasonable mistake of belief;
- Wrongful identification;
- Lack of intent or mental impairment.
The maximum penalty for Use a Drug of Dependence (s75 of the Drugs, Poisons and Controlled Substances Act 1981) is a $4,757.10 fine or 1 year imprisonment, or both.
It is unlikely that you will be sentenced to a term of imprisonment for this charge unless the offending breaches a Community Corrections Order or some other form of community based / deferred sentence. However, if you are found guilty of this charge a term of imprisonment is a possibility. It is important that you talk to a lawyer and properly prepare your case.
Elements of the OffenceTo prove this charge, the prosecution must show that the accused used or attempted to use a drug of dependence. Two elements must be proven: (1) that the substance in question was a drug of dependence; and (2) that the accused used or attempted to use that substance.
Element 1: The substance in question was a drug of dependence
Section 4 of the 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.
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.
Element 2: The accused used or attempted to use a drug of dependence
Evidence such as CCTV, witness statements and admissions can be used to support the claim that a person used a drug of dependence.
An example of when this element of the offence would be made out is if a person makes admissions to using a drug of dependence in a police interview.