Commonwealth Director of Public Prosecutions

Drug Possession

Drug Possession

Drug possession generally applies where a person has physical custody or control over the drug or has the drugs in a place that gives them the right, power or ability to take them into custody. For example, a person would be in possession of drugs if they:

  • receive or obtain possession of the drugs
  • have some degree of control over the disposition of the drugs, whether or not the drugs are within that person’s custody
  • have sole or joint possession of the drugs

Commonwealth drug possession offences can be divided into two basic categories. The first category involves border controlled drugs or plants that have been unlawfully imported or that are reasonably suspected of having been unlawfully imported. The second category comprises ‘simple’/domestic possession offences (with no link to an importation). Such offences include the possession of controlled drugs or precursors together with offences relating to the possession of equipment and instructions for commercial cultivation of plants or the commercial manufacture of drugs.

The ‘simple’ or ‘base’ possession offence in section 308.1 of the Criminal Code is also available as an alternative verdict to a number of other offences.

The detection of importations of drugs and precursors at the border will normally result in a substitution of the illicit substance with an inert substance. This in turn means that offenders who subsequently take delivery of the ‘substance’ will often be charged with the offence of ‘attempt’. Penalties for the offence of ‘attempt’ are the same as for the completed offence.

Commonly Used Offences

  • s.307.5(1) Criminal Code – possessing commercial quantities of unlawfully imported border controlled drugs or plants
  • s.11.5 & s.307.5(1) Criminal Code – attempt to possess commercial quantity of unlawfully imported border controlled drugs or plants
  • s.307.10(1) Criminal Code – possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported
  • s.308.1 Criminal Code – possessing controlled drugs
  • s.308.2 Criminal Code – possessing controlled precursors

Penalties

The maximum penalties for possessing unlawfully imported border controlled drugs or plants are as follows:

  • s.307.5 Criminal Code – possessing commercial quantities of unlawfully imported border controlled drugs or plants – life imprisonment;
  • s.307.6 Criminal Code –possessing marketable quantities of unlawfully imported border controlled drugs or plants – 25 years imprisonment;
  • s.307.7 Criminal Code – possessing unlawfully imported border controlled drugs or plants – 2 years imprisonment.

The maximum penalties for possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported are as follows:

  • s.307.8 Criminal Code – possessing commercial quantities of border controlled drugs or plants reasonably suspected of having been unlawfully imported – life imprisonment;
  • s.307.9 Criminal Code – possessing marketable quantities of border controlled drugs or plants reasonably suspected of having been unlawfully imported – 25 years imprisonment;
  • s.301.10 Criminal Code – possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported – 2 years imprisonment

The maximum penalty for possessing controlled drugs (s.308.1) or controlled precursors (s.308.2) is 2 years imprisonment.

Sentencing

The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/

Relevant Legislation

Criminal Code

Criminal Code Regulations

Director’s Litigation Instructions

DLI 5 – PDF icon Charging Importation Cases involving Substitution of Drugs or Precursors

DLI 8 – Charging Guideline for Domestic Drug Offences under Part 9.1 of the Criminal Code

Law Reform

On 29 May 2013 the Criminal Code Amendment Regulation 2013 (No. 1) commenced. This amendment significantly expanded the schedules of controlled and border controlled drugs and moved the schedules from the Criminal Code to the Criminal Code Regulations. This allows for illicit substances to be listed more quickly and improves the Commonwealth’s ability to be responsive as illicit markets evolve.

Significant Cases

  • Onourah v R (2009) 76 NSWLR 1
  • Weng v R [2013] VSCA 221
  • Barker v The Queen [2012] WASCA 51

Partner Agencies

Australian Federal Police
Department of Immigration and Border Protection