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Possession is defined under section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as a substance in possession of a person so long as it is upon any land or premises occupied by him or her, or is used, enjoyed or controlled by him or her in any place whatsoever, unless the person satisfies the court to the contrary, and is also defined in section 10 of the Drug Misuse and Trafficking Act 1985 as: a person who has a prohibited drug in his or her possession is guilty of an offence.

Drugs are separated into two categories: Schedule 1 drugs which include amphetamines, cocaine, heroin, LSD and ecstasy and carry a greater penalty than schedule 2 drugs, which include cannabis, morphine and barbiturates. As well as prohibited drugs, there are also restricted substances, which you would need a prescription to possess. If you are found with these, such as Xanax or steroids, then you can also be charged with possession.

The more common drugs of dependence are:

  • Cannabis.
  • Heroin.
  • Amphetamines (e.g.speed).
  • Cocaine.
  • LSD.
  • MDMA (ecstasy).

You may be charged under S73with possession if it can be proven beyond reasonable doubt that the drugs found were in your possession, even if it is for just a moment, such as passing a Marijuana joint around. It is important to remember that possession is not the same as ownership – you do not have to be the one to have purchased the drug to be charged with possession.

A first offence of possession for cannabis or heroin in small quantities will likely result in a warning, along with drug counselling and time spent at a drug treatment centre.

You may have several defences open to you if you deny you were in possession of the drug, deny you had knowledge of possessing the drug, deny that it is a prohibited drug and if you use the Carey Defence (temporary possession of another person’s drug).

Facing drug possession offences in Australia

If you find yourself facing drug possession charges, you have three options open to you at court. You can either plead not guilty, or guilty, or you can admit to the charges that are against you and request diversion. The diversion program is for less serious cases and you will need to agree to certain conditions, but you will not have a criminal record.

If you are found guilty you may face a fine or imprisonment. This will depend on how much of the drug you had in your possession and whether or not you pleaded guilty. For possession of cannabis, you can be fined up to 5 penalty units. If you are charged with the possession of a schedule 1 drug, you could face jail time as well as up to 30 penalty units. The law does vary according to your state or territory. Other penalties you may face include: good behaviour bonds, community service orders, suspended sentence (upon entering a good behaviour bond), and periodic detention (detention for two days each week, usually a Friday to a Sunday).

Thexton Lawyers have had extensive experience dealing with all kinds of drug charges across all the Australian states. We also understand the methods and procedures of the police drug squad members who deal with these types of charges. Drug laws differ somewhat between the States, so it is important that your matter is dealt with in a specific manner. At Thexton Lawyers, we tailor our work specifically to our client’s needs and circumstances. We also have access to all the best QCs who specialise in drug charges in the event that you require a barrister for your matter. Call us on 1300 388 298 for advice.


Our criminal law specialist, Glenn Thexton, provides answers
to your common criminal law questions:

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