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Drugs, Poisons and Controlled Substances
(Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
Part V of the Drugs, Poisons and Controlled Substances Act 1981 (the
Principal Act) provides a range of offences concerning drugs of dependence
including--
· Trafficking in a drug of dependence;
· Cultivating a narcotic plant;
· Supplying a drug of dependence to a child;
· Use and possession of a drug of dependence; and
· Being in possession of substances, materials, documents or equipment
for trafficking in a drug of dependence.
Special provisions also apply to indicate when a person is guilty of
conspiring, aiding, abetting, counselling, procuring, soliciting or inciting the
commission of an offence such as trafficking in a drug of dependence.
Part V applies to a wide range of offences and culpability. Some offences
are punishable by substantial periods of imprisonment; for instance the
offence of trafficking in a commercial quantity of drugs is punishable by a
maximum term of 25 years imprisonment. However, in other situations,
different sentencing considerations apply. For instance, where a person is
charged with possession of a small quantity of cannabis and the court is
satisfied that the person was not trafficking in that cannabis, and the person
has not previously been convicted of a drug related offence, then there is a
presumption that the court should release the person on an adjourned bond.
The main changes introduced by this Bill concern the offences of trafficking
in a drug of dependence and cultivation of a narcotic plant. In contrast to the
541192 BILL LA CIRCULATION 17/8/2001
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existing offences, the Bill clearly provides for separate offences for
trafficking or cultivating in specified amounts of drugs of dependence and
sets out the penalties for those offences.
Clause Notes
Clause 1 sets out the purposes of this Bill.
Clause 2 provides that this Bill will commence on a day to be proclaimed.
If it is not proclaimed on an earlier date, the Bill will come into
operation on 1 January 2002.
Clause 3 provides that the Drugs, Poisons and Controlled Substances
Act 1981 is called the Principal Act in this Bill.
Clause 4 (1) inserts new definitions into the Principal Act.
Existing offences under the Principal Act are limited in that a
separate offence must be charged for each different drug of
dependence that is trafficked. For instance, if Jack is found to be
trafficking in heroin, amphetamines and tetrahydrocannabinol,
Jack will be convicted of three offences of trafficking in a drug
of dependence.
In clause 5 of the Bill, a new offence of trafficking in a
commercial quantity of 2 or more drugs of dependence has been
included. If Jack is trafficking in an aggregated commercial
quantity of drugs of dependence, Jack will be convicted of one
offence, rather than three offences.
The finding that a person is involved in trafficking in a
commercial quantity of drugs is important as more onerous
provisions apply when a court is--
· considering whether to grant bail (see clause 13);
· sentencing an offender (see clauses 5 and 14); and
· confiscating property (see clause 11).
To determine whether the quantity of drugs when aggregated
constitutes a commercial quantity, the definition enables
quantities of drugs of dependence (that will usually be less than
the commercial quantity when each drug is considered
separately) to be added together. In effect, if the total amount of
drugs trafficked, when considered as a proportion of the
commercial quantity of each drug trafficked is equivalent to the
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commercial quantity of a single drug, then sufficient drugs have
been trafficked that the person should be treated as a trafficker in
a commercial quantity of drugs of dependence (see clause 5, new
section 71AA). The quantities of drugs involved is specified in
Schedule Eleven to the Principal Act as amended by clause 8 of
this Bill.
A definition of an "aggregated large commercial quantity" has
also been inserted into the Principal Act. This definition is
relevant in determining whether a person is guilty of the
offence of trafficking in a large commercial quantity of 2 or more
drugs of dependence (see clause 5, new section 71).
The provisions concerning liability for this offence operate in the
same way as for the offence of trafficking in a commercial
quantity of 2 or more drugs outlined above except that the
quantities of drugs concerned must be greater. The quantities of
drugs involved is specified in Schedule Eleven to the Principal
Act as amended by clause 8 of this Bill.
Following the restructure of the offence of cultivation of a
narcotic plant, the existing definition of "cultivate" in relation to
a narcotic plant has been moved from section 72 of the Principal
Act to section 70 of the Principal Act.
A definition of a "large commercial quantity" of a drug or drugs
of dependence has been inserted. This definition is necessary to
determine whether the new offence of trafficking in a large
commercial quantity of a drug or 2 or more drugs of dependence
has been committed (see clause 5, new section 71). A large
commercial quantity may be proved in relation to a specified
quantity of one drug or an aggregated large commercial quantity
of 2 or more drugs. To determine the quantities required to
constitute a large commercial quantity, see Schedule Eleven to
the Principal Act as amended by clause 8 of this Bill.
Clause 4(2) substitutes a new definition of a "commercial quantity".
This definition is necessary to determine whether the new
offence of trafficking in a commercial quantity of a drug or 2 or
more drugs has been committed (see clause 5, new section
71AA). A commercial quantity may be proved in relation to a
specified quantity of one drug or an aggregated commercial
quantity of 2 or more drugs. To determine the quantities required
to constitute a commercial quantity, see Schedule Eleven to the
Principal Act as amended by clause 8 of this Bill.
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Clause 5 substitutes new offences of trafficking in a drug or drugs of
dependence for the existing provisions concerning trafficking in
a drug of dependence.
The new section 71 of the Principal Act provides that it is an
offence to traffick in a large commercial quantity of a drug or 2
or more drugs of dependence. The amount required to constitute
a "large commercial quantity" of a drug or drugs of dependence
is defined in clause 4 of the Bill, which refers to the tables in
Schedule Eleven to the Principal Act, as amended by clause 8 of
this Bill.
When drugs of dependence are being aggregated for an offence
against new section 71, column 1A is to be used to determine
whether the aggregated drugs constitute an aggregated large
commercial quantity.
The new section 71AA of the Principal Act provides that it is an
offence to traffick in a commercial quantity of a drug or drugs of
dependence. A similar provision currently exists in the Principal
Act (see section 71(1)(a) in relation to a single drug of
dependence). The amount required to constitute a "commercial
quantity" of a drug or 2 or more drugs of dependence is defined
in clause 4 of the Bill. The definition refers to the tables in
Schedule Eleven to the Principal Act. Schedule Eleven to the
Principal Act is amended by clause 8 of this Bill but the
quantities of drugs of dependence required to constitute a
"commercial quantity" of a single drug are not altered from those
that apply in the existing tables in Schedule Eleven.
When drugs of dependence are being aggregated for an offence
against new section 71AA, column 2 is to be used to determine
whether the aggregated drugs constitute an aggregated
commercial quantity.
A person convicted of trafficking in a commercial quantity of a
drug or drugs of dependence is liable to be sentenced to a
maximum of 25 years imprisonment. By virtue of section 109 of
the Sentencing Act 1991 a fine of up to 3000 penalty units
($300 000) may also be imposed.
The new section 71AB of the Principal Act provides that it is an
offence to traffick in a drug of dependence to a child. It is not
necessary to prove that a specific or minimum amount of a drug
of dependence was trafficked (the smallest amount of a drug of
dependence will be sufficient). A similar provision currently
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exists in the Principal Act (see section 71(1)(ab)). This offence
recognises that even greater harm may be caused by trafficking a
drug of dependence to a child than to an adult.
A person convicted of trafficking a drug of dependence to a child
is liable to be sentenced to a maximum of 20 years imprisonment.
By virtue of section 109 of the Sentencing Act 1991 a fine of up
to 2400 penalty units ($240 000) may be imposed.
If a person trafficks in a commercial quantity or a large
commercial quantity of a drug or drugs of dependence to a child,
then the prosecution would charge the offender with those more
serious offences. If during the course of a trial for trafficking in
a drug of dependence to a child, there was evidence that a more
serious offence had been committed (eg that a commercial or
large commercial quantity of drugs was trafficked to a child), the
court may direct that the person be tried for that more serious
offence (see section 422 of the Crimes Act 1958) and the person
would then be liable to the higher penalties applicable to that
offence.
The new section 71AC of the Principal Act provides that it is an
offence to traffick in a drug of dependence. It is not necessary to
prove that a specific or minimum amount of a drug of
dependence was trafficked (the smallest amount of a drug of
dependence will be sufficient). Further, it is not necessary to
prove that the drugs were trafficked to a person who was not a
child. A similar provision currently exists in the Principal Act
(see section 71(1)(b)).
A person convicted of trafficking a drug of dependence is
liable to be sentenced to a maximum of 15 years imprisonment.
By virtue of section 109 of the Sentencing Act 1991 a fine of up
to 1800 penalty units ($180 000) may also be imposed.
Clause 6 substitutes new offences of cultivating narcotic plants for the
existing provisions concerning cultivating narcotic plants.
The new section 72 of the Principal Act provides that it is an
offence to cultivate a narcotic plant in a large commercial
quantity. The amount required to constitute a "large commercial
quantity" of a drug of dependence is defined in clause 4 of the
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Bill, which refers to the tables in Schedule Eleven to the
Principal Act, as amended by clause 8 of this Bill.
A person convicted of the cultivation of a narcotic plant in a
large commercial quantity is liable to be sentenced to life
imprisonment. In addition, a fine may be imposed of up to
5000 penalty units ($500 000).
The new section 72A of the Principal Act provides that it is an
offence to cultivate a narcotic plant in a commercial quantity.
The amount required to constitute a "commercial quantity" of a
drug of dependence is defined in section 70(1) of the Principal
Act, which refers to the tables in Schedule Eleven to the
Principal Act, as amended by clause 8 of this Bill. A similar
provision currently exists in the Principal Act (see section
72(1)(ab)).
A person convicted of the cultivation of a narcotic plant in a
commercial quantity is liable to be sentenced to a maximum of
25 years imprisonment. By virtue of section 109 of the
Sentencing Act 1991 a fine of up to 3000 penalty units
($300 000) may also be imposed.
The new section 72B of the Principal Act provides that it is an
offence to cultivate a narcotic plant. It is not necessary to prove
that a specific or minimum amount of a narcotic plant was
cultivated (the smallest amount of a narcotic plant will be
sufficient). A similar provision currently exists in the Principal
Act (see section 72(1)(a) and (b)).
The maximum penalty applicable to a person convicted of the
cultivation of a narcotic plant depends on whether a particular
finding is made by the court.
If the trial judge or magistrate is satisfied on the balance of
probabilities that the offence was not committed for any purpose
relating to trafficking in the plant (for example where the plant
was grown for the person's personal use) the maximum penalty
that may be imposed is imprisonment for one year or a penalty of
not more than 20 penalty units ($2000) or both. If the trial judge
or magistrate is not so satisfied, the maximum penalty that may
be imposed is 15 years imprisonment. By virtue of section 109 of
the Sentencing Act 1991 a fine of up to 1800 penalty units ($180
000) may be imposed.
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The new section 72C of the Principal Act provides that it is a
good defence to the prosecution of an offence of cultivation of a
narcotic plant that the person did not know or suspect (and could
not reasonably have been expected to have known or suspected)
that the plant being cultivated was a narcotic plant. A similar
provision currently exists in the Principal Act (see section 72(5)).
Section 421 of the Crimes Act 1958 applies generally to
indictable offences charged in the County Court or Supreme
Court. This section enables a jury to find a person guilty of
another offence that is included (either expressly or by
necessary implication) within the offence charged, where the jury
is not satisfied that the person is guilty of the offence charged.
For instance, if a person is charged with trafficking in a large
commercial quantity of a drug of dependence, a jury may acquit
the person of that charge, if not satisfied that the quantity of
drugs trafficked was a large commercial quantity. However, if
the jury is satisfied that drugs were trafficked, the jury may find
the person guilty of trafficking in a drug or drugs of dependence
(section 71AC) or trafficking in a commercial quantity of a drug
or drugs of dependence if the jury is satisfied that it was a
commercial quantity of drugs that was trafficked (section 71AA).
A similar result may apply where a person is charged with
cultivation of narcotic plants in a large commercial quantity or a
commercial quantity.
Clause 7 makes consequential amendments to the Principal Act
concerning--
· the circumstances in which an adjourned bond should be
given (section 76(1)(a)(i));
· offences of conspiring or aiding and abetting the trafficking
of a drug or drugs of dependence or the cultivation a
narcotic plant (sections 79(1) and 80(1));
· preparing in Victoria to commit certain serious drug
offences outside of Victoria (section 80(4)); and
· the giving of evidence of the market value of drugs of
dependence (section 122A).
Clause 8 substitutes new Parts 2 and 3 of Schedule Eleven for the existing
Parts 2 and 3 of Schedule Eleven to the Principal Act.
Column 1A of Part 2 of Schedule Eleven sets out the large
commercial quantity of Cannabis L: 250 kilograms or
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1000 plants. This is the minimum quantity of drugs of
dependence that must be proved to have been cultivated for an
offence of cultivating a large commercial quantity of a narcotic
plant. Columns 2, 3 and 4 of Part 2 are the same as the Columns
2, 3 and 4 of Part 2 in the existing Schedule Eleven to the
Principal Act.
Column 1A of Part 3 of Schedule Eleven sets out the large
commercial quantity for a number of drugs of dependence (the
drugs that are most frequently trafficked in large quantities).
Column 1B of Part 3 of Schedule Eleven sets out the large
commercial quantity of a number of drugs of dependence when
that drug of dependence is a quantity of a mixture of substance
and the drug of dependence.
Column 2, 2A, 3 and 4 of Part 3 are the same as Columns 2, 2A,
3 and 4 of Part 3 in the existing Schedule Eleven to the Principal
Act.
Clause 9 amends the heading to Part XII of the Principal Act.
Clause 10 inserts transitional provisions to provide that the amendments
made to the Principal Act apply only to offences alleged to have
been committed after the commencement of the Bill.
Further, where an offence is alleged to have been committed
between two dates, one before and one on or after the
commencement of this Bill, then the offence is deemed to have
been committed before the commencement of this Bill.
Clause 11 makes consequential amendments to the Confiscation Act 1997.
If a person is charged with or found guilty of an offence against
new sections 71, 71AA, 72 or 72A, that person may be subject to
automatic forfeiture processes or civil forfeiture processes.
Clause 12 amends Schedule 4 to the Magistrates' Court Act 1989 by
providing that if a person is charged with an offence against new
sections 71, 71AA, 72 or 72A, those charges must be heard and
determined in the County Court or Supreme Court and cannot be
heard and determined in the Magistrates' Court.
The remaining indictable drug trafficking and cultivation
offences may be heard and determined summarily if the
Magistrates' Court considers that the charge is appropriate to be
determined summarily and the defendant consents to a summary
hearing (see section 53(1) of the Magistrates' Court Act 1989).
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Clause 13 amends the Bail Act 1977 by providing that if a person is
charged with an offence under new sections 71, 71AA, 72 or
72A, the court must refuse bail unless the court is satisfied that
exceptional circumstances exist which justify bail being granted.
If a person is charged with an offence under new sections 71AB,
71AC or 72B, the court must refuse bail unless the court is
satisfied that the person has shown cause why his or her
detention in custody is not justified.
Clause 14 amends clause 4 of Schedule 1 of the Sentencing Act 1991.
Part 2A of the Sentencing Act 1991 provides that if a person is
convicted of trafficking in a commercial quantity or cultivation
of a commercial quantity of drugs, that person may be sentenced
as a "serious drug offender". If a serious drug offender commits
another serious drug offence, then in fixing the sentence, the
Court--
· must regard the protection of the community as the
principal purpose of the sentence;
· may impose a sentence that is longer than is proportionate
to the gravity of the offence committed; and
· must impose a sentence to be served cumulatively upon any
other sentence of imprisonment unless the Court orders
otherwise.
Because of the amendments to clause 4 of Schedule 1 of the
Sentencing Act 1991 this sentencing regime will be extended to
those who are convicted of the new offences of trafficking in a
large commercial quantity of a drug or drugs, trafficking in a
commercial quantity of drugs (involving an aggregated
commercial quantity of drugs) and cultivation of a large
commercial quantity of drugs. It already applies to trafficking in
a commercial quantity of a single drug and cultivating a
commercial quantity of drugs.
Paragraph (c) of clause 4 of Schedule 1 of the Sentencing Act
1991 has been repealed. The offences that were referred to in
that paragraph are included in the amendments to paragraph (a)
of clause 4.
Clause 15 amends the Juries Act 2000 by providing that on the trial of a
person for the offences of trafficking in a drug or drugs of
dependence that constitutes a large commercial quantity or of
cultivating a narcotic plant in a large commercial quantity, the
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verdict of the jury must be unanimous because these offences
carry life imprisonment.
For all other drug trafficking and cultivation of a narcotic plant
offences, the verdict of the jury may be by majority, in the
circumstances outlined in the Juries Act 2000 which apply to all
other offences which are not punishable by life imprisonment.
This amendment applies to trials commencing on or after the
commencement of this Bill. However, this amendment requiring
the verdict of the jury to be unanimous applies to the new
section 71 offence of trafficking in a large commercial quantity
but does not apply to offences for trafficking in a drug of
dependence contrary to the existing section 71 offence.
Clause 16 makes consequential amendments to the Crimes Act 1958 to
provide that the provisions concerning the taking of forensic
samples apply to the new trafficking in drugs and cultivation of
narcotic plants offences.
Consequential amendments to the Surveillance Devices Act
1999 have also been made to provide that a "serious drug
offence" includes the new trafficking in drugs and cultivation of
narcotic plants offences.
Consequential amendments to the Transport Act 1983 have also
been made to provide that the definition of a level 2 offence,
which currently applies to drug trafficking offences includes the
new trafficking in drugs offences.
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