The Law Handbook 2024

Chapter 3.2: Drug offences 137 quantity, it must be proved by the prosecution beyond reasonable doubt that ‘the accused knew or believed that it was, or was likely’ that ‘the amount in question was not less than a commercial quantity’. (See also R v Van Xuan Bui [2005] VSCA 300.) When measuring the weight of the illegal substance to determine whether the weight amounts to a commercial quantity, it may be appropriate to distinguish between the quantity that is for the possessor’s own use and the quantity that the possessor has for sale to others (this comment by Justices Crockett and Philips in R v Kardogeros [1991] 1 VR 269 was probably made obiter dictum , which means it is not a binding precedent). It is not appropriate to distinguish between the amount of the substance that is usable and the amount that is unusable ( R v Kardogeros ). In the Kardogeros case, the accused was convicted of having a commercial quantity of cannabis (150 kilograms) even though 80 kilograms was allegedly unusable material (e.g. stalks). (See also R v Torrisi [1998] VSCA 21; R v Coviello (1995) 81 A Crim R 293.) Commercial quantities of some common drugs are shown in the table below. The complete list of commercial quantities is found in schedule 11, Parts 1, 2 and 3, column 2, and in Part 3, column 2A of the DPCS Act. Commercial quantities of common drugs: Mixed and pure weights Drug Commercial quantity: Mixed weight Commercial quantity: Pure weight THC 10 kg 1 kg Cannabis 25 kg (or 100 plants) Heroin 250 g 50 g Amphetamine 500 g 100 g Cocaine 500 g 250 g LSD 50 mg MDMA, MDA 500 g 100 g Large commercial quantity Trafficking large commercial quantities carries themost severe penalties for drug offences. The complete list of large commercial quantities is found in schedule 11, Parts 2 and 3, column 1A of the DPCS Act. Aggregated quantities A commercial quantity or large commercial quantity can be comprised of an aggregate of two or more drugs of dependence, where the quantity of each drug alone does not amount to a commercial or large commercial quantity. Aggregated quantities can include a ‘dilute’ drug, that is, a drug contained in or mixed with another substance. Section 70 of the DPCS Act explains how the quantity of each substance is made into a fraction and added together. Cultivation: Offences and penalties What is cultivation? Cultivation of a non-commercial quantity of a narcotic plant is an indictable offence triable summarily (s 72B DPCS Act). A narcotic plant is defined in section 70(1) of the DPCS Act with reference to schedule 11, Part 2. A narcotic plant includes a cutting of a plant, whether or not the cutting has roots. The more commonly known narcotic plants are cannabis, the opium poppy, and the coca plant. The statutory definition of ‘cultivation’ (s 70(1) DPCS Act) is wide. To cultivate includes to sow, plant, grow, tend, graft, divide, transplant, nurture or harvest a narcotic plant. A single one of these acts constitutes the offence; for example, to water (nurture) a plant or to harvest one leaf constitutes the act of cultivation for the purposes of the DPCS Act. The prosecution does not need to prove that the offender knew that the plant was a narcotic plant. However, it is a defence to not know, suspect or reasonably have been expected to know or suspect that the plant was a narcotic plant (s 72C DPCS Act). Penalties for cultivation If the court is satisfied on the balance of probabil- ities that the cultivation was not related to trafficking, then the penalty is a fine of not more than 20 pu, or imprisonment of not more than one year, or both (s 72B(a) DPCS Act). In these circumstances, the court also has the option of a bond under section 76(1)(a)(i) of the DPCS Act (see ‘Summary of penalties’, below). The maximum penalty for cultivation – where the purpose is related to trafficking – is imprisonment for