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Possession and use

Information about sentencing for drug possession and use.

Penalties differ substantially depending on the type and quantity of the drug, and whether or not the court is satisfied the possession was related to trafficking.

The test for whether the possession was related to trafficking is on the balance of probabilities.

Minor charges

For first-time offenders with a small quantity, a magistrate can be required to consider a bond as an appropriate penalty. Diversion may also be something to consider.

It may also be possible that the person may just get a police caution. This is something that the informant has to decide. The offender may need to agree to have drug counselling and to attend drug treatment. If the person does not attend this treatment, they may be charged by police later.

Section 76 of the Drugs, Poisons and Controlled Substances Act directs a magistrate to sentence a person to an adjourned undertaking (a ‘good behaviour bond’) without conviction if:

  • the offence is not related to trafficking, and
  • the person hasn’t been found guilty of a drugs charge in Australia before, and
  • the drug is cannabis and the person is charged with possession, use or non-commercial cultivation
  • the charge relates to other drugs and the person is charged with possession or use of small quantity only.

However, the court can proceed to impose a conviction if it is satisfied it is appropriate to do so. In this situation, the court must give reasons.

Penalties

Possession offences are indictable offences and so they will appear on a person's criminal record if the person is found guilty.

A charge of possession of a small quantity of cannabis not related to trafficking attracts a fine of up to 5 penalty units. Possession of a small quantity of any other drug not related to trafficking, or possession of cannabis greater than a small quantity, attracts a fine of up to 30 penalty units and/or one year in prison.

See What is a police record?

Use

A person can also be charged with use or attempted use of a drug of dependence. If the court is satisfied that the offence was committed in relation to cannabis, the maximum penalty is 5 penalty units.

For other drugs the maximum penalty is 30 penalty units and/or up to a year in prison.

See s. 75—Drugs, Poisons and Controlled Substances Act 1981 (Vic)(opens in a new window).

Getting charged

Police will often charge someone with both use and possession offences. They will often ask the person whether they have used the drug or if they intend to use it. If the person admits to using, they can be charged.

More information

Legislation

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

  • s. 73(1)—possession of small quantity of cannabis not related to trafficking and penalties
  • s. 75—use of drug of dependence
  • s. 76—adjourned bonds to be given in certain cases
  • Schedule 11—List of drugs of dependence and the quantities required to make out various offence categories

See Drugs, Poisons and Controlled Substances Act 1981 (Vic)(opens in a new window).

Updated