The Law Handbook 2024

138 SECTION 3: Fines, infringements and criminal law up to 15 years (s 72B(b) DPCS Act). The maximum penalty for the cultivation of a commercial quantity of a narcotic plant is imprisonment for 25 years (s 72A DPCS Act). This offence is a category 2 offence under the Sentencing Act 1991 (Vic) (‘ Sentencing Act ’), which means that a court must impose a custodial order for this offence unless an exception applies (s 5(2H) (a)–(e) Sentencing Act). The prosecution must prove beyond reasonable doubt that the accused had actual knowledge of the quantity of cannabis alleged to have been cultivated; that is, that the accused knew there were 25 kilograms or 100 plants or more being cultivated (see R v Van Xuan Bui [2005] VSCA 300). For a large commercial quantity, the maximum penalty is life imprisonment and a fine of up to 5000 pu (s 72 DPCS Act). Recent state offences In 2016 and 2017, several new offences were established in the DPCS Act. The recently introduced offences included: 1 The use of violence or threats to cause another person to traffick a drug. This is an indictable offence and carries a maximum penalty of five years’ imprisonment (s 71AD(1)). 2 The supply of a drug of dependence to a child at a school, or in a public place within 500 metres of a school, for the purposes of the supply of that drug by that child to another person, whether a child or adult, or for the use of that drug by that child. The term ‘supply’ is broad enough to include those circumstances where the drug is given to the child or is bought for the child and then given to the child without a profit being made. This charge does not apply to a person who supplies a drug to a child if that person is also a child. It is a defence if the person supplying the drug to the child believes on reasonable grounds that the child is aged 18 or above. These are indictable offences and carry a maximum penalty of 20 years’ imprisonment, or a fine of 1600 pu, or both (s 71B(1A(a), (b)). 3 The possession of a document containing information about trafficking or cultivating a drug of dependence. The prosecution bears the onus of proof if the accused raises any ‘matter of exception qualification or defence’. This is an indictable offence and carries a maximum penalty of five years’ imprisonment, or a fine of 600 pu, or both (s 71E). 4 Intentionally or recklessly publishing a document that contains instructions for the trafficking or cultivating of a drug. The prosecution bears the onus of proof if the accused raises any ‘matter of exception qualification or defence’. Note that it is irrelevant whether the document or instructions actually work to traffick or cultivate a drug. ‘Publish’ includes to sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate. This is an indictable offence and carries a maximum penalty of up to 10 years’ imprisonment or a fine of 1200 pu (s 71F). 5 Intentionally or recklessly permitting the use of premises for trafficking or cultivating a drug. If the accused is charged with ‘recklessly perm- itting use of premises for cultivating a drug’, the accused may seek to satisfy the court on the balance of probabilities that they did not know or suspect, and could not reasonably have been expected to know or suspect, that the narcotic plant was a narcotic plant. The term ‘premises’ is defined broadly to include: – residential dwellings (including temporary accommodation), – commercial or industrial land or buildings, – other structures on land (including cabins, caravans, sheds and shipping containers), – vehicles (including motor vehicles, aircraft, boats and vessels). This is an indictable offence and carries a maximum penalty of five years’ imprisonment (s 72D). 6 Several newoffences created to target ‘psychoactive substances’. Psychoactive substances are defined as substances that, when consumed by a person, have a ‘psychoactive effect’ (i.e. the ‘stimulation or depression of a person’s central nervous system, resulting in hallucinations, or in a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood’; or ‘causing a state of dependence, including physical or psychological addiction’). Producing, selling, supplying or advertising any substance that has a psychoactive effect, or is purported to have a psychoactive effect, when consumed are all criminal offences (ss 56D, 56E, 56F). These offences carry maximum penalties of up to two years’ imprisonment, or a fine of 240 pu, or both.