Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

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Drug possession

It is against the law to use, possess, cultivate or traffic a drug of dependence, including marijuana, heroin, amphetamines, cocaine, LSD and ecstasy.

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It is against the law to use, possess, cultivate or traffic a drug of dependence.

The penalties for using and possessing small quantities of illegal drugs are treated less seriously than for trafficking and cultivating drugs. Importing or exporting drugs is an offence under Commonwealth law.

Drugs of dependence

The more common drugs of dependence are:

  • cannabis (marijuana)
  • heroin
  • amphetamines (speed)
  • cocaine
  • LSD
  • MDMA (ecstasy).

There are long lists of the kinds of drugs that are prohibited by law.

Possession of an illegal drug

Possession is one of the most common drug offences. Possession means having a drug on you or in a house or property you occupy. This includes cannabis growing anywhere on the premises. You can be charged with possession if drugs are found in a car you own or you are driving.

Police caution

If you are caught with a small quantity of cannabis or heroin and it is your first offence, you will usually get a warning (caution) instead of being charged with the offence. The police informant makes this decision. You will have to agree to have drug counselling and to attend a drug treatment centre. If you do not go along as agreed, you may be charged by police later.

For the police to prove a charge of possession in court, you must have known that the drug was there and have intended to possess it. Read How we can help before being interviewed by police.

Drug trafficking

You could be charged with trafficking drug of dependence if you are caught:

  • with a large quantity of the drug
  • preparing (such as dividing the drugs into smaller packages) or manufacturing a drug
  • selling the drug
  • buying drugs for a friend.

Penalty for trafficking

The penalties are much higher for trafficking an illegal drug. They depend on the quantity you have and how old you are.

The maximum penalty for an adult is;

  • 15 years jail and/or a fine of up to 1,800 penalty units, or
  • 25 years jail and/or 3,000 penalty units for trafficking a commercial quantity of an illegal drug.

The maximum penalty for a person under 18 years old is 20 years in jail and/or a fine of up to 2,400 penalty units.

Read How we can help before being interviewed by police.

Cultivation

Cultivation is the offence of growing narcotic plants. These are cannabis, opium or cocoa plants.

The maximum penalty depends on whether you are found guilty of trafficking as well. These are indictable offences.

If you are charged with cultivation, read how we can help before being interviewed by police.

Going to court for possession of cannabis

Cannabis is a drug of dependence and these drugs are illegal.

Quantities of cannabis are defined as:

  • small quantity – up to 50 grams
  • traffickable quantity – 250 grams or over, or 10 plants
  • commercial quantity – 25 kilograms or over, or 100 plants
  • large commercial quantity – 250 kilograms or more, or 1000 plants

Whether you are guilty depends on the exact facts and circumstances of your case. Look in the ‘Details of the charge’ in your charge sheet to see what the police officer wrote about your offence. The magistrate will look at this in the courtroom.

Use of cannabis

If the police charged you with possession of cannabis, they may also charge you with use of cannabis. Use includes smoking, inhaling fumes, injecting or swallowing an illegal drug. The police can charge you if they saw you using or trying to use cannabis. They can also charge you if they did not see you using but you told them you used it.

It is still an offence to possess a quantity over 50 grams and under 250 grams. It is more serious to have over 50 grams but not necessarily considered a traffickable quantity.

Trafficking cannabis

If you have been charged with possessing more than 250 grams of cannabis or more, the police may have also charged you with trafficking cannabis. If you have been changed with trafficking cannabis, speak with a lawyer.

Help before court

If you have a future court date, you may be eligible to get help to prepare before you go to court. You can request help online.

What does the prosecution have to prove?

The prosecution must have evidence that an offence occurred. For the offence of possession of cannabis, the police have to prove all of the following:

  • the offence occurred at a certain time and place
  • you are the offender
  • you had a substance in your possession
  • the substance was an illegal drug.

What are my options at court?

Admit to the charges and ask for diversion

Getting diversion means your case is treated differently. It is normally for less serious cases. You must agree to certain conditions, such as doing the Cautious with Cannabis program. You do not get a criminal record.

To get diversion you must admit that you broke the law. This includes everything in the statement of alleged facts. Tell the magistrate that you know you broke the law but you would like diversion. If the police have not recommended diversion for you, you can ask to adjourn (put off) the case.

Plead guilty

If you agree that you broke the law, you should tell the court that you are pleading guilty. During the court hearing, the prosecutor will read out the statement of alleged facts. The magistrate will find you guilty and give you a penalty.

If you plead guilty the magistrate treats this as a sign that you are co-operating and may give you a less severe penalty.

For more information visit our page Going to court – pleading guilty.

Plead not guilty

If you believe that you did not break the law, or you disagree with what is in the statement of alleged facts, you must tell the prosecutor before your court date that you plan to plead not guilty. They will hold a summary case conference with you before your case is heard in court. If you still want to plead not guilty after the conference, tell the magistrate. The magistrate will adjourn (put off) your case for another day.

You will come back to court for a contested hearing. When you come back the magistrate listens to evidence from you and the police before making a decision. You should have a defence. Saying that you did not know you were breaking the law is not a good enough defence.

If you are pleading not guilty, get legal advice before the contested hearing. See Going to court – pleading not guilty.

Possible defences

You may have a defence if:

  • the substance was not cannabis
  • the substance was not in your possession.

‘In your possession’ includes if the police found the substance in your purse, bag, pockets, house, car or anywhere you have control over. If this is where police found the substance, you will have to prove to the magistrate that it was not yours.

Can I adjourn today’s hearing?

You can ask the magistrate to adjourn (to put off) your case if you have a good reason. For example, to ask police about diversion or get a lawyer.

If you have not adjourned your case before and you are on summons, you may be able to get an adjournment without going into the courtroom. When you arrive at court, go to the counter and tell the staff you want an adjournment.

What are the penalties if I am found guilty?

Fines

The magistrate can give you a fine. This depends on the amount of cannabis you had. You can get:

  • up to five penalty units for up to 50g of cannabis
  • up to 30 penalty units or up to a year in jail for over 50 g but under 250 g.

If you are also found guilty of using cannabis, the magistrate could fine you up to five penalty units. This is on top of the fines for the possession charge.

If you are found guilty of cannabis possession the magistrate may give you a fine. This depends on the amount of cannabis you pleaded guilty to possessing. If you pleaded guilty to possessing up to 50 grams of cannabis the magistrate could fine you up to five penalty units.

If the police also charged you with using cannabis, and the magistrate found you guilty, the magistrate could fine you up to five penalty units. This is on top of the penalty units for the possession charge.

You should tell the magistrate about your income and things you have to pay for, and whether you support a family.

If you get a fine you can pay it straight away at court. If you do not pay the fine straight away, Fines Victoria will send you a Court fine collection statement. This will tell you how much you owe and when the fine is due.

You can ask Fines Victoria for a payment plan if you cannot afford to pay the fine in one payment.

If you do not pay the fine when it is due, Fines Victoria may increase the fine. The court can issue a warrant for your arrest.

Other penalties

If you were charged with possession of cannabis, the magistrate can also put you on an undertaking to behave well for a certain amount of time.

If you were charged with possessing other illegal drugs, such as heroin, cocaine or ecstasy you can be fined up to 30 penalty units. You could also be sent to jail for up to one year.

You may need to convince the court that you did not possess the drug to sell, particularly if caught with a large quantity of the drug.

If charged with possessing a large quantity of an illegal drug you may have to make the court believe that you did not possess the drug in order to sell (traffic) the drug.

What else might happen if I am found guilty?

Forfeiture

If the police took the cannabis, the prosecutor will apply to the court for a forfeiture order. This means that the police will not give the cannabis back to you.

Criminal record

What happens in court goes into your criminal record.
This includes:

  • the finding of guilt
  • a conviction, if there is one
  • penalties.

The court and the police can see your criminal record. Sometimes they can let other people know what is in your criminal record. A criminal record, especially with convictions, may make it harder for you to get some jobs or get visas to some countries.

See Possible outcomes for traffic offences for more information about penalties and other outcomes.

Can I appeal the magistrate’s decision?

Yes. If you do not agree with the decision you can appeal to the County Court. You have 28 days to do this. Get legal advice before you decide. You could get a higher penalty.

Court support services

Courts recognise that people who are addicted to illegal drugs need help and support to overcome this. If the magistrate believes that you need access to treatment for drug addiction instead of punishment, they may refer you off to get help from the Magistrates’ Bail support program or the Court Integrated Services Program (CISP).

Other support

For more information, support and referrals, visit:

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