Drug Offences Lawyer Ballarat

Drug charges in Victoria span an enormous range — from possession of a small quantity of cannabis, often resolved without a criminal record, through to trafficking and importation offences carrying life imprisonment. Two different bodies of law can apply: Victorian offences under the Drugs, Poisons and Controlled Substances Act 1981, and Commonwealth offences under the Criminal Code (Cth), which typically arise where drugs cross the border, including by post. This page explains both. McMahon Criminal Defence Lawyers acts in drug matters at the Ballarat Magistrates’ Court — directly opposite our office — and in courts across Victoria, on fixed fees.

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Victorian Drug Offences

Victorian drug offences are set out in the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which lists the substances treated as “drugs of dependence” in Schedule 11 — including cannabis, methylamphetamine, heroin, cocaine, MDMA and many others. These matters are investigated by Victoria Police and prosecuted in the Victorian courts, most commonly the Magistrates’ Court for possession and lower-level matters, and the County Court for serious trafficking and cultivation charges.

Possession (section 73)

It is an offence to possess a drug of dependence without authorisation. Possession is broader than having drugs on your person: under the Act, drugs found on premises you occupy or control can be deemed to be in your possession unless you satisfy the court otherwise — a reverse onus that catches many people in share houses, cars and rental properties. For possession not connected with trafficking, the maximum penalty is 30 penalty units or 1 year’s imprisonment; for a small quantity of cannabis for personal use, the maximum is a fine only. In practice, minor possession matters are frequently resolved by diversion or without conviction.

Use of a drug of dependence (section 75)

Using, or attempting to use, a drug of dependence is a separate, lower-level offence, generally punishable by fine (with cannabis use treated more leniently than other drugs). Use charges are often laid alongside possession.

Trafficking (sections 71–71AC)

“Trafficking” is much wider than selling. It includes preparing a drug for trafficking, manufacturing, exchanging, agreeing to sell, and offering for sale — an offer alone can complete the offence, even if no drugs ever change hands. The offence is tiered by quantity:

• Trafficking (s 71AC) — maximum 15 years’ imprisonment, rising to 20 years where the trafficking occurs at or near a school;
• Trafficking to a child (s 71AB) — maximum 20 years;
• Trafficking a commercial quantity (s 71AA) — maximum 25 years;
• Trafficking a large commercial quantity (s 71) — maximum life imprisonment, and a Category 1 offence under the Sentencing Act, for which a custodial sentence is effectively mandatory on conviction.

Cultivation (sections 72–72B)

Cultivating a narcotic plant — most commonly cannabis — is an offence whether or not it is connected to trafficking, and “cultivate” is defined broadly to include sowing, growing, tending, nurturing or harvesting. Non-commercial cultivation (s 72B) is dealt with far less severely than cultivation of a commercial quantity (s 72A, maximum 25 years) or a large commercial quantity (s 72, maximum life imprisonment). The number of plants and their yield is therefore critical, and is a frequent battleground in cultivation prosecutions.

Related offences

The Act also creates a series of offences that police commonly charge alongside the principal counts: possession of a substance, material, document or equipment for the purpose of trafficking (s 71A, maximum 10 years); possession of a tablet press (s 71C); possession of precursor chemicals (s 71D); and permitting premises to be used for trafficking or cultivation (s 72D). These charges often turn on inference — what the items, packaging, cash or messages are said to show about intention — which makes them particularly susceptible to careful defence analysis.

Drug Quantities and the Trafficking Presumption

Schedule 11 of the Act prescribes, for each drug, a small quantity, a traffickable quantity, a commercial quantity and a large commercial quantity. These thresholds drive everything: which offence is charged, which court hears it, and the sentencing range.

Most importantly, under section 73(2), possession of a traffickable quantity is prima facie evidence of trafficking. A person found with that quantity can face a trafficking charge even where they insist the drugs were for personal use, and the practical burden shifts to the defence to displace the inference. Many of the trafficking matters we defend are exactly this kind of case — a personal-use quantity that crosses the traffickable threshold, often combined with packaging or cash said to indicate sale. Whether that inference can be displaced is frequently the central issue in the case.

Penalties at a Glance

Maximum penalties indicate the seriousness with which Parliament treats each offence; actual sentences depend on the circumstances of the offending and the offender.

Commonwealth Drug Offences

A separate body of federal drug law applies under Part 9.1 of the Criminal Code (Cth). Commonwealth charges typically arise where drugs cross Australia’s border — importation and exportation of “border controlled drugs” — including drugs ordered online and intercepted in the post, a fact pattern that has become one of the most common ways otherwise ordinary people end up facing federal charges. The Commonwealth also has its own trafficking, manufacturing and possession offences for “controlled drugs”.

How Commonwealth matters differ

• Who investigates and prosecutes. Commonwealth matters are typically investigated by the Australian Federal Police and Australian Border Force and prosecuted by the Commonwealth Director of Public Prosecutions (CDPP), rather than Victoria Police and the Victorian OPP.
• Quantity tiers. Like Victorian law, federal offences are tiered by quantity — with marketable and commercial quantities attracting maximum penalties of 25 years and life imprisonment respectively for importation, and lower maximums for sub-marketable quantities.
• Different elements and presumptions. The elements, fault requirements and available defences differ from Victorian law — for example, in how intention to sell is presumed from quantity — and federal sentencing follows its own regime under the Crimes Act 1914 (Cth), with different discounts, recognizance release orders instead of some State orders, and distinct parole arrangements.
• Where they are heard. Commonwealth charges are heard in the Victorian courts exercising federal jurisdiction — less serious matters can resolve in the Magistrates’ Court, while importation matters involving marketable or commercial quantities proceed to the County Court.

It is common for State and Commonwealth charges to be laid together — for instance, a Commonwealth importation count alongside Victorian trafficking counts. Defending these matters requires familiarity with both regimes, because a strategy that works under one can be a mistake under the other.

Avoiding a Criminal Record for Minor Drug Matters

For low-level possession and use matters, a criminal record is far from inevitable. Depending on the circumstances, options include:

• Cannabis cautioning — police may caution rather than charge for minor cannabis possession, usually limited to first and second detections;
• Drug diversion — police and the courts operate diversion pathways for minor drug matters, including the Criminal Justice Diversion Program, which resolves a charge without any finding of guilt;
• A finding of guilt without conviction — where a matter proceeds, the court may impose a sentence without recording a conviction under section 8 of the Sentencing Act 1991.

Which of these is realistically available depends on the drug, the quantity, your history and how the matter is presented — early legal advice materially improves the prospects.

Defending Drug Charges

Drug prosecutions are more defensible than many people assume. Depending on the matter, defences and strategies include:

• Possession not proved — the prosecution cannot establish knowledge, custody or control, or the statutory deeming provision is displaced (common where drugs are found in shared premises or vehicles);
• Displacing the trafficking presumption — establishing that drugs above the traffickable threshold were for personal use;
• Disputing quantity and analysis — challenging the weight, purity analysis or plant count that determines which offence tier applies;
• Unlawfully obtained evidence — challenging the legality of a search, seizure or telephone intercept, and seeking exclusion of the resulting evidence;
• Lack of intention — particularly for items-for-trafficking, precursor and premises offences that depend on inference; and
• Negotiated resolution — charge withdrawal or substitution of lesser counts through case conferencing.

What To Do If You Are Charged

Do not participate in a police interview about a drug allegation before getting legal advice — admissions about knowledge and intention are often the strongest evidence in these cases. If you have been charged, your matter will usually begin with a mention hearing; if you have been arrested and remanded, see our guide to bail, noting that for serious drug offences a reverse-onus bail test applies. We offer a free initial consultation and fixed fees for all drug matters, from possession through to County Court trafficking trials.

Frequently Asked Questions

Can I get diversion for a first drug offence?

Often, yes. Minor possession and use matters are regularly resolved through the Criminal Justice Diversion Program, which requires prosecution consent and results in no finding of guilt and no criminal record. Police cannabis cautions may also be available for minor cannabis possession. Eligibility depends on the drug, the quantity and your history.

I was caught with drugs but they weren’t mine. Is that a defence?

It can be. The prosecution must prove possession — knowledge plus custody or control. However, Victorian law deems drugs found on premises you occupy or control to be in your possession unless you satisfy the court otherwise, so these cases require careful preparation rather than a bare denial.

Why have I been charged with trafficking when the drugs were for personal use?

Because possession of a traffickable quantity is prima facie evidence of trafficking under section 73(2). Once the quantity crosses that threshold, the practical burden shifts to the defence to displace the inference of trafficking. This is one of the most common and most defensible scenarios in Victorian drug law.

What is the difference between a Victorian and a Commonwealth drug charge?

Victorian charges arise under the Drugs, Poisons and Controlled Substances Act 1981, prosecuted by Victoria Police and the OPP. Commonwealth charges arise under the Criminal Code (Cth) — typically importation, including drugs intercepted in the post — investigated by the AFP and Border Force and prosecuted by the CDPP, with different elements, presumptions and sentencing rules. The two are sometimes charged together.

What are the penalties for drug trafficking in Victoria?

Trafficking carries a maximum of 15 years’ imprisonment, rising to 20 years for trafficking at or near a school or to a child, 25 years for a commercial quantity, and life imprisonment for a large commercial quantity, which is a Category 1 offence. Actual sentences depend on the quantity, role and circumstances.

I ordered drugs online and received a letter from Border Force. What should I do?

Get legal advice before responding to anyone or attending any interview. Importation of border controlled drugs is a Commonwealth offence, and even small online orders can attract federal charges. What you say at the earliest stage — including in response to a controlled delivery or a notice — can shape the entire case.

Will a drug charge show up on police checks and affect my job?

A finding of guilt can appear on a police check, which is why outcome strategy matters: diversion avoids any finding of guilt, and a court can impose a sentence without recording a conviction. Under the Spent Convictions Act 2021, some findings later cease to be disclosable. The right pathway depends on your matter — ask us before your first court date.

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