DRUG MATTERS 

Drug Matters

Drug related offences are prevalent before the Courts. Drug matters range from low level possession and use of drugs of dependence, to large scale importations and trafficking of large commercial quantities of prohibited drugs.

 

Our team represents individuals charged with drug offences across the spectrum of offending. Our lawyers appear before the Magistrates’ and County Courts in possession, use and trafficking matters and instruct in large scale trafficking and importation matters. We regularly assist clients to engage with drug and alcohol bail programs (CISP & CREDIT bail) and to successfully navigate their way through the Court system effectively and compassionately. If you or someone you care about is struggling with a drug or alcohol abuse problem, please refer to the links at the end of this page.

 

We are also experienced in large drug trafficking matters, which often include drug analysis, surveillance and telephone intercept evidence. In such matters, Galbally Rolfe Criminal Lawyers are specialists in the use of data management systems, which allow us to summarise and dissect surveillance evidence, which is pivotal to a successful outcome for our client. It is also essential in large scale cases to consider whether restraining order and confiscation proceedings will arise from the prosecution, which inevitably adds another layer of complexity to the defence of our clients.

 

For example, in 2016 and 2017, Galbally Rolfe represented a young Iranian national who was originally charged with over half a dozen serious charges relating to drug possession, trafficking and possession of proceeds of crime. Following discussions between our firm and the prosecution, the prosecution agreed to proceed with only two charges and to withdraw the rest. This resulted in a much lesser term of imprisonment than would otherwise have been imposed by the County Court had all the charges proceeded.

 

In cases where our clients are, themselves, suffering from drug addiction or substance abuse problems, we take an interpersonal approach, matching the client with the right mental health professional and counselling system in order to encourage rehabilitation and facilitate an exit from the criminal justice system.

 

Outlined below are the most common offences under the Drugs Poisons and Controlled Substances Act which come before the Courts and information in relation to the related penalties.

Drugs of Dependence

 

Drugs of dependence which give rise to criminal offences are detailed under Schedule 11 of the Act. The Schedule lists the drugs themselves and their requisite chemical components. The list is long and complex. However, in practicality, most criminal accused charged with drug offences are charged in relation to:

  •  methylamphetamine (“ice”);
  • amphetamine (“speed”);
  • diacetylmorphine (“heroin”);
  • cocaine;
  • cannabis or cannabinoids;
  • ecstasy or 3,4-methylenedioxy-n-methylamphetamine (MDMA) – NB: ecstasy may also contain a combination of MDMA, amphetamine and fillers;
  • pseudoephedrine (a precursor chemical to the manufacture of drugs of dependence); and
  • ecstasy.

Relevant quantities of a Drug of Dependence

 

The seriousness of a drug offence depends on the drug and quantity. An accused person can be charged with trafficking (large commercial quantity, commercial quantity or basic trafficking), possession, use or administration to another person. The quantum of the drug alleged is the basis of the trafficking charge. Detailed below are the relevant amounts for each of the most commonly prosecuted drugs. Note: these  amounts do not include circumstances where the drug is mixed with another substance – see Schedule 11 for the relevant amounts in these cases.

Methylamphetamine (“ice”)

  • Large Commercial Quantity =  750g
  • Commercial Quantity = 100g
  • Traffickable Quantity = 3g
  • Small Quantity = 0.75g

Amphetamine (“speed”)

  • Large Commercial Quantity =  750g
  • Commercial Quantity = 100g
  • Traffickable Quantity = 3g
  • Small Quantity = 0.75g

Diacetylmorphine (“heroin”)

  • Large Commercial Quantity =  750g
  • Commercial Quantity = 250g
  • Traffickable Quantity = 3g
  • Small Quantity = 1g

Cocaine

  • Large Commercial Quantity =  750g
  • Commercial Quantity = 250g
  • Traffickable Quantity = 3g
  • Small Quantity = 1g

Cannabis

  • Large Commercial Quantity =  250kg or 1000 plants
  • Commercial Quantity = 25kg or 100 plants
  • Traffickable Quantity = 250g or 10 plants
  • Small Quantity = 50g

Ecstasy or MDMA

  • Large Commercial Quantity =  750g
  • Commercial Quantity = 100g
  • Traffickable Quantity = 3g
  • Small Quantity = 0.75g

Pseudoephedrine

  • Large Commercial Quantity =  750g
  • Commercial Quantity = 100g
  • Traffickable Quantity = 20g
  • Small Quantity = N/A

Trafficking in a Drug or a Drug of Dependence

A trafficking offence occurs where:

  • a drug is prepared for trafficking;
  • a drug is manufactured;
  • a drug is sold;
  • there is an agreement to sell the drug;
  • the drug is offered for sale; and
  • the drug is in the possession of the accused for the purposes of sale.

 

There must, in essence, be a commercial element to the transaction. Where drugs are taken to a party, for example, and are shared around the party goers without them being purchased by the provider or offered for sale, this will arguably not be trafficking. However, it will constitute another offence, such as possession, supply or use.

Large Commercial Quantity 

Any person who trafficks or attempts to traffick in a large commercial quantity of a drug of dependence is liable to a maximum sentence of life imprisonment. The baseline sentence for the offence is 14 years imprisonment. A baseline sentence is the sentence which the Victorian Parliament intends to be the median sentence imposed on offenders convicted of the baseline offences, in this case trafficking a large commercial quantity. In considering all of the matters relevant to the case and the offender, the sentencing court may take into account a number of other factors (mitigating or aggravating) and adjust the sentence accordingly. Baseline sentencing does not apply to offenders under the age of 18 years. This offence must be heard and determined in the County Court of Victoria.

Upon conviction for this offence the Court must make an order that the offender is a serious drug offender pursuant to section 89DI of the Sentencing Act, which has ramifications under the Confiscation Act for the restraint, confiscation or forfeiture of assets belonging or linked to the offender. It is imperative that, if you are charged with this offence and remanded in custody (which will automatically occur given the seriousness of the offence), a family member or friend contact an experienced criminal lawyer to discuss the matter. Please visit our contact us page for the details or our experienced criminal lawyers.

Commercial Quantity

Any person who trafficks or attempts to traffick in a commercial quantity of a drug of dependence is liable to a maximum sentence of 25 years imprisonment. No baseline sentence applies to this offence. This offence must be heard and determined in the County Court of Victoria.

Trafficking (simpliciter)

Any person who trafficks or attempts to traffick a traffickable amount of a drug of dependence is liable to a maximum sentence of 15 years. This offence can be heard summarily the Magistrates’ Court, which attracts the lower sentencing jurisdiction. The Magistrates’ Court can sentence an accused to a maximum of 2 years imprisonment for a single offence and 5 years for multiple offences.

 

However, in circumstances where the accused is charged with trafficking or attempting to traffick a drug of dependence to a child, this offence is punishable by a maximum sentence of 20 years imprisonment. Under this Act, a child is any person under the age of 18.

 

There is also an offence of supply a drug of dependence to a child, which is punishable by a maximum sentence of 15 years imprisonment. A supply occurs in circumstances where there is no sale or agreement to sell. The very provision of a drug of dependence to a child is an offence, notwithstanding that there is no commercial element to it.

Possession of a Drug of Dependence

This offence is a summary offence, heard in the Magistrates’ Court, and is made in circumstances where a person is found in possession of a small amount of a drug of dependence. In circumstances where the court is satisfied on the balance of probabilities that the accused was not in possession of the drug for the purposes of trafficking, the sentence is a financial penalty of not more than 30 penalty units. Visit our Infringements & Penalties page for further information on penalty units. Where the drug of dependence is cannabis, the penalty is reduced to 5 penalty units. Visit our Infringements & Penalties page for further information on penalty units.

 

In circumstances where the court is not satisfied on the balance of probabilities that the accused was in possession of the drug for any other purpose other than for trafficking, the sentence is up to 400 penalty units and/or 5 years imprisonment.

Use Drug of Dependence

 

It is an offence to use or attempt to use a drug of dependence. Where the drug is cannabis, the sentence is a financial penalty of not more than 5 penalty units. In any other case, it is a financial penalty of not more than 30 penalty units, one year imprisonment or both.

 

There are many other drug offences within the Act, which are not included in this page, but which are less commonly prosecuted before the Courts. If you are charged with one of these offences, contact our experienced criminal lawyers who can advise you.

Bail 

 

Obtaining bail can be an easy or difficult exercise in drug matters, depending on the drug offence(s) with which the accused is charged, their prior convictions, the Prosecution’s attitude to bail and whether there are any particular risk factors which might concern the Court that they will be an unacceptable risk if released on bail. Please see our Bail section for further information regarding these factors.

 

Relevant to bail for drug offences are the Court Integrated Services and Credit Bail Support Programs.

CISP – Court Integrated Services Program

 

The Magistrates’ Courts at Melbourne, Sunshine and Latrobe Valley have CISP. The program is designed to assist accused persons who suffer from particular issues, such as drug and alcohol abuse problems, to get the treatment they need, whilst supervising their progress on bail.

Credit Bail Support Program

 

The Credit Bail Support Program is operated through the Magistrates’ Courts at Ballarat, Broadmeadows, Dandenong, Frankston, Geelong, Heidelberg, Moorabbin and Ringwood. It is a similar program to CISP and also, assists clients to access drug treatment and other referral services relevant to their situation.

Sentencing

Apart from the obvious custodial sentences which attach to serious drug offending, there are some treatment and rehabilitation focused sentencing dispositions which a court may impose on an offender who is suffering from a drug abuse problem.

Community Based Order

 

With the abolition of suspended sentences and intensive correction orders, Parliament introduced Community Correction Orders (CCO’s), which are orders that can be served instead of, or in addition to, periods of imprisonment. CCO’s can include many conditions, including treatment conditions, community work, supervision, random drug and alcohol screening and curfew conditions. They can be imposed for up to 5 years in the Magistrates’ Court and up to 2 years in the County or Supreme Courts: see section 38. See our section on Breaches of CCO’s for further information on CCO’s.

 

Importantly, this year the Court of Appeal handed down a guideline judgment in Boulton concerning the operation and application of CCO’s as a sentencing disposition and now opens the door for Courts to sentence offenders to CCO’s even for very serious offences, including drug offences. However, if you are charged with Commonwealth Offences, the Court of Appeal in Atanackovic  ruled that Boulton does not apply to Commonwealth offences. Even though you may receive a CCO for Commonwealth Offences, you cannot rely on the case as a Guideline Judgment.

Drug Treatment Order

 

Where an offender is sentenced to a serious offence in the Magistrates’ Court, which does not involve violence or sexual offending, an offender may be sentenced to a drug treatment order provided that:

  • they are convicted of the offence;
  • the court is satisfied on the balance of probabilities that he or she is dependent on drugs or alcohol and, this dependency contributed to their offending;
  • the court considers that a sentence of imprisonment, to be served and not suspended, would be appropriate in the circumstances; and
  • the court has received a drug treatment order assessment report in relation to the offender.

 

The Order operates in two parts: the treatment part and the custodial part. The Court must, under the order, impose a period of imprisonment, without a parole period, of no more than two years. However, the custodial portion of the Order will not be activated unless the Court otherwise orders. A Court may order that the custodial aspect of the Order be activated if the offender commits an offence punishable upon conviction by a period of imprisonment of more than 12 months.

 

The conditions of the treatment aspect of the order will include conditions that the offender not reoffend, that they attend the Drug Court when required, report to community corrections and undergo treatment. A complete list of the conditions is found in the Act. If the offender breaches any of the conditions in the order they may be brought back before the Court to be dealt with. Please refer to section 18ZL of the Sentencing Act for a list of the different actions a Court may take.

Contacts for Support

Lifeline & Directline

Family Drug Help

Victorian Health Page