Drugs
9. Seriousness of Offences
Firm / Chambers:
Last updated: 21 Jul 2015
- A lawyer can help you to properly understand
- the seriousness of the charge against you;
- the potential penalties you face if the charge is proven; and
- the penalty you are likely to receive in your particular circumstances.
- The drug laws in each state and territory generally divide offences into categories according to seriousness. Seriousness is determined by the type of drug the quantity seized and aggravating factors such as trafficking, sale and supply.
- In all states and territories the larger the weight of pure drug concerned the more serious your case is and the greater the risk of jail or large fines. If you were selling or planned to sell it the seriousness of the offence and the severity of penalty are increased.
- There are lists of illegal drugs and substances set out in the drug laws of each state and territory which specify the amounts of pure drug required for a case to be deemed more or less serious. These lists and specified weights govern how your case will be dealt with. For example the penalty categories for cultivating cannabis in each state and territory depend on the number of plants or weight of cannabis material seized.
- Offences involving the cultivation or supply and possession of a commercial quantity of prohibited drugs attract higher penalties.
- In order of seriousness from the least serious to most serious most state and territory drug laws include quantity categories like:
- minor or small quantities;
- indictable or traffickable quantities;
- commercial quantities; and
- large commercial quantities.
- If your charges concern a small number of plants or small amount of cannabis then your matter may be dealt with without a conviction under the sentencing laws of some states and territories if:
- you have no prior convictions;
- the recording of a conviction would impact your employment prospects; and
- you agree to plead guilty to possessing the cannabis.
- If it is established that the drug was in your possession and the amount is over a specified amount then you are usually deemed (presumed) to have had it in your possession for the purpose of sale.
- To challenge this presumption you will need to produce evidence to prove on the balance on probabilities that you did not have it in your possession for the purpose of sale. This will be harder to prove with a large quantity.
- In Victoria police cannot simply rely on the quantity to prove trafficking. They must also produce other evidence such as
- scales;
- packaging into ‘deals’;
- phone calls; and
- unexplained cash.
- A lawyer will look to see whether your matter is serious enough that it has to be committed to a higher court or if it can be dealt with in the Magistrates’ Court or a specialist drug court.
- The likelihood of going to jail is greatly decreased if your matter can be dealt with by a magistrate as opposed to being dealt with in a higher court.
- Your lawyer will look at things like police photographs of the seized drugs and the police analysis certificate in order to see whether the quantity of pure illegal drug you have been charged with can be reduced as much as possible or negotiated down to an amount that keeps your case in the Magistrates’ Court.
- When you have been charged with a drug offence involving an indictable or commercial quantity of drugs or more your lawyer will:
- request copies of all original police notes about your matter;
- request a viewing of the drugs to make certain the drugs are still in existence;
- have the drugs re-weighed; and
- require the prosecution to state very clearly the amount of drugs they say you were going to sell.
- In some states harder drugs like heroin or amphetamine cannot be dealt with in the Magistrates’ Court unless the only charge is possession. These drugs are considered to be more serious and will be dealt with in a higher court.
- If the matter is sent to a higher court you may proceed with either:
- a guilty plea with disputed facts;
- a guilty plea with court submissions to seek as low a penalty as possible; or
- a not guilty plea and going to trial.
- A trial may also be necessary when there is no dispute that the drug has been possessed or produced by you but the real question is whether you were going to sell it.
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