The Law Handbook 2024

144 SECTION 3: Fines, infringements and criminal law according to the jurisdiction in which the offence is tried. The range of penalties for a particular offence can only be determined by carefully examining the DPCS Act and other relevant legislation. See the ‘Maximum penalties for state (Victorian) drug offences’ table; it is important to note that the penalties listed in this table are maximum, not mandatory, penalties. However, in relation to trafficking large com- mercial quantities of drugs, a ‘standard sentence’ is likely to apply. Also, for these offences, the sentencing options other than a custodial sentence are very limited even where ‘special reasons’ apply (ss 5(2G), 5(2GA) Sentencing Act). The penalties for indictable offences are listed in the Act that creates the offence. The penalties for indictable offences heard summarily are determined by sections 112A and 113 of the Sentencing Act. These provisions respectively limit the penalties that a magistrate may impose for a single offence to a fine of 500 pu and two years’ imprisonment. The Sentencing Act provides for: • prison sentences; • drug treatment orders; • community correction orders (with or without conviction); • fines (with or without conviction); • adjourned undertakings – also known as ‘good behaviour bonds’ (with or without conviction); and • charges proven and dismissed without penalty. Some of these penalties can have conditions attached to them, requiring assessment, supervision and treatment for drug or alcohol addiction. Such conditions can only be attached if the person being sentenced agrees to comply with them. For more information about penalties, see Chapter 1.3: Sentencing in the Magistrates’ Court. Section 76 DPCS Act bonds We use the term ‘bond’ or ‘good behaviour bond’ for convenience, because most people are more familiar with that terminology. However, this sentencing option is more precisely described as an ‘adjournment without conviction’, subject to the giving of certain undertakings to the court by the person being sentenced. For people being sentenced for drug offences for the first time, and the offences are use, possession or cultivation of cannabis, or the use or possession of any drug found in Part 3 of schedule 11 of the DPCS Act, there is a presumption in favour of receiving a good behaviour bond without conviction because of section 76 of the DPCS Act. The charge must relate to ‘small quantities’ only (see ‘Quantities’, above) for any drug other than cannabis. The court must also be satisfied that the drug was not possessed or cultivated for the purposes of trafficking. A section 76 bond is available to a person charged with conspiracy (s 79 DPCS Act) or aiding and abetting (s 80) the commission of any of the offences that come within the criteria. Section 76 of the DPCS Act does not apply to a person who has a previous conviction under any of the Acts listed in section 76(1)(b) of the DPCS Act. These Acts include certain parts of the historical Poisons Act 1962 (Vic) and the Public Health and Wellbeing Act 2008 (Vic) as well as related Acts in other states and territories of the Commonwealth, such as the Customs Act and the Criminal Code. Most drug-related offences are included in the list. Since section 76 of the DPCS Act only excludes those previously ‘convicted’ of a drug offence from obtaining a bond, it is presumably still possible for a person who has previously been found guilty of a drug offence (but not convicted), to receive a section 76 bond. Section 76(1)(b) provides that such a person would be excluded if they had ‘previously been dealt with under this section’ (i.e. a person who has previously received a section 76 bond). Under section 76(3) of the DPCS Act, any previous convictions under the Children, Youth and Families Act 2005 (Vic) or corresponding state or Commonwealth Acts are to be disregarded for the purposes of determining prior drug convictions under section 76(1)(b). Section 76 of the DPCS Act still applies if a person has received a caution or diversion (see ‘Diversion’, above). Provided the criteria for giving a bond are met, a magistrate must state their reasons if they choose to not give a person being sentenced for drug offences for the first time (for use, possession or cultivation) a bond without conviction. The magistrate must also consider the accused’s character and prior criminal history as well as ‘all the circumstances’ and the ‘public interest’. A common reason for refusing a without conviction bond is that the accused has indicated that they do not intend to stop using cannabis. This is effectively refusing to give an undertaking to be of good behaviour.