Updated: Apr 18
We explain the elements, defences and penalties
The prosecution must prove the following elements beyond reasonable doubt.
- A person possesses
- a drug of dependence
Meaning of 'possession'
At common law possession involves the physical control or manual detention of the subject item or thing, together with an intention to exclude other persons. Possession includes actual possession- when a person knowingly has direct physical control over a thing at a given time; and constructive possession - a person who, knowingly has both the power and intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is in constructive possession.
The intention element to a possession of drug of dependence charge requires the accused to have knowledge that the prohibited drug was in his/her possession: He Kaw Teh (1985).
In the case of Perira v DPP (1989) ALR 217 the court observed, on issue of requisite intention, that "... in such cases, the question remains one of actual knowledge.... It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge.
Proof of knowledge can as an inference be drawn from the surrounding circumstances.
Section 5 of the Act defines 'possession' as:
"Without restricting the meaning of the word "possession", any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary".
Meaning of 'drug of dependence'
Section 4 of the Act provides the following definition:
(a) a drug—
(i) specified in column 1 of Part 1 of Schedule Eleven; or
(ii) included in a class of drug specified in column 1 of Part 1 of Schedule Eleven; or
(b) any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven; or
(ba) prescribed as a drug of dependence in accordance with section 132AA whether specified as included in Part 1, Part 2 or Part 3 of Schedule Eleven; or
(c) a drug—
(i) specified in column 1 of Part 3 of Schedule Eleven; or
(ii) included in a class of drug specified in column 1 of Part 3 of Schedule Eleven—
(d) any form of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic, and the salts, analogues, derivatives and isomers of that drug and any salt of those analogues, derivatives, and isomers; and
(i) drug specified in, or drug included in a class of drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic; or
(ii) salts, analogues, derivatives, or isomers of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven; or
(iii) salt of any analogue, derivative or isomer mentioned in subparagraph (ii)— contained in or mixed with another substance.
It is important to also note the deeming provisions as they relate to the possession of a drug of dependence for the purposes of trafficking. Under the Act, a quantity may be deemed to be a 'traffickable quantity' and accordingly presumed not to be for personal use. Read our blog on trafficking a drug of dependence for more information.
The gravity of the penalty under Section 73 depends upon the drug, and the quantity. Possession of a small quantity of cannabis under s. 73 carries a maximum penalty of 5 penalty units and may be an offence suitable for diversion. However, where the drug is not cannabis, a maximum penalty of 30 penalty units or 12 months imprisonment. Again, depending upon the circumstances, this category of offence may be referred for diversion. However where the drug in question is alleged to be connected to trafficking, the offence is indictable, and carries a maximum of 30 penalty units or 5 years imprisonment or both.
The prosecution must prove that an accused intended to possess the drug of dependence seized. Consequently, may arise (depending upon the circumstances) that a person did not have actual knowledge and control of the drug alleged to be in their possession. There might also be an argument as to whether the item seized is in fact a drug of dependence and may need to be resolved by way of forensic testing.
This offence is most often heard and determined in the Magistrates' Court. The range of sentencing outcomes available to the Court are varied. A diversion outcome may be possible in certain cases. Each case will obviously turn on its own facts, but as a general guide, the Sentencing Advisory Council published the following outcomes for the period 2016 - 2019:
Imprisonment - 43.4%
Community Correction Order - 26.1%
Fine - 17.7%
Adjourned undertaking/dismissal - 11%
It is worth noting that a first offence of Possess drug of dependence would rarely attract immediate imprisonment in the Magistrates' Court. Cases where imprisonment has been imposed usually involve significant quantities of a drug of dependence, or an accused has a poor criminal history (and other non-imprisonment sanctions have been imposed previously), or where Possess drug of dependence is part of a consolidation of other more serious offences.
Prepare early, and get advice
If you are facing a charge of Possess drug of dependence, call our office on (03) 9668 7600 to organise a case assessment where all options, including defending the allegation(s) can be discussed at length.