Addiction convictions

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Written by St Kilda Legal Service

In the last 12 months, one in seven people have used illegal drugs. According to the Crime Statistics Agency there was a 13.4 per cent increase in drug use and possession offences between March, 2015 and 2016.

In Victoria we have four major drug offences: use, possession, cultivation and trafficking. To be found guilty the crime must involve a drug of dependence. Schedule Eleven of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (the “Drugs Act“) includes a list of all the drugs of dependence and the relevant quantities. This list includes any form of the drugs, whether natural or synthetic; as well as the fresh or dried parts of the plants.

Use

You can be charged with use if you smoke or introduce a drug of dependence into your body. The penalty you might receive depends on the drug you’ve used.

The use of cannabis carries a maximum fine of up to $778. There is no jail, even if it’s not your first offence. Under the Cannabis Program, if the Victoria Police catches a person with a small amount of cannabis and he/she admits that it’s theirs, they may only get a Caution which is a formal warning.

For any other drug you could receive up to a year jail and/or a fine of up to $4,664.

If someone is caught with a very small amount of another drug the police may issue a Drug Diversion which is similar to a Caution. You must admit to having the drugs and will have to attend appointments at a drug treatment agency.

Possession

Possession can mean that the drug was in your custody or control and you intended to possess it. Possession can mean that the drug was on the land or property that you occupied and you had control over that place (i.e. who has access). Possession can also mean that you used or enjoyed the drug.

The penalty is harsher if the court believes you were planning on also trafficking drugs. You could receive up to five years jail and/or a fine of up to $62,184.

If possession was not for the purposes of trafficking you can receive up to one year jail and/or a fine of up to $4,664.

If you were in possession of a small quantity of cannabis the penalty is a fine of no more than $778.

Trafficking

There are several trafficking offences under the law, including general trafficking, trafficking a commercial quantity, trafficking a large commercial quantity and trafficking to a child.

The quantities for trafficking, commercial quantity trafficking and large commercial quantity trafficking are listed under schedule 11 of the Drugs Act.

Trafficking includes preparing a drug for trafficking, manufacturing a drug, selling, exchanging, making an agreement to sell or having a drug in your possession for selling. It doesn’t matter if the sale happened once or there was a drug dealing business occurring over a period of time.

The penalty for a trafficking charge the penalty is up to 15 years jail and/or a fine of up to $279,828. The penalty for trafficking a commercial quantity the penalty is up to 25 years jail and/or fine of $466,380 for trafficking a commercial quantity of an illegal drug. The penalty for trafficking to a person under the age of 18 the penalty is up to 20 years jail, and/or a fine of up to $373,104.

Cultivation

Cultivation is the offence of growing narcotic plants like cannabis or opium. Cultivation includes sowing, planting, growing, tending to, grafting, dividing, transplanting, nurturing or harvesting a narcotic plant. It can be a single act, like watering a plant once or taking care of a plant over a long time.

You do not need to know that the plant was a narcotic. At a minimum it needs to be proven that you suspected or should have reasonably been expected to know or suspect.

If you were growing the plant for personal use and not for trafficking then the penalty is up to one year jail and/or a fine of up to $3,109.

If you were growing the drug for trafficking then you could receive up to 15 years in jail and/or a fine of up to $279,828.

Drug crimes are serious and it’s important to get legal advice. Besides providing your name and address you do not need to answer any other questions from the Police. Speak to a lawyer as soon as possible.

If you live within the City of Port Phillip, Stonnington or Bayside Councils we may be able to assist you. Call St Kilda Legal Service on 9534 0777 to make an appointment for our night service which operates from 7:00pm on Monday, Wednesday or Thursday.

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