The Law Handbook 2024

Chapter 3.2: Drug offences 145 Diversion is the preferable outcome for an offender, since no finding of guilt is made or recorded. However, if diversion is not an option, the advantage of this type of bond is that no conviction is recorded. Where a section 76 bond is given for an offence involving a drug other than cannabis, the bond must include a condition that the offender undertakes to complete an approved drug education and information program. Section 76 of the DPCS Act provides a pre- sumption that a without conviction bond will be the sentence in certain conditions. It does not preclude the granting of a bond (under section 75 of the Sentencing Act) in situations to which section 76 does not apply, for example, a second offence. Serious drug offenders A serious drug offender is a person other than a young offender (i.e. aged under 21 at the time of sentencing) who has been convicted of a drug offence for which they have been sentenced to a term of imprisonment or detention in a youth training centre. For a person to be described as a ‘serious drug offender’, they must have committed one of the offences listed in clause 4 of schedule 1 of the Sentencing Act. In addition, the offence must relate to an amount of the drug not less than the commercial quantity where the offence is a DPCS Act offence, or a ‘marketable’ or ‘commercial’ quantity where the offence is a Criminal Code offence (see ‘Commonwealth Criminal Code’, below). The court can sentence a serious drug offender to a term of imprisonment that is longer than the offence itself warrants. This is based on the principle that once a person is regarded as a serious offender, the overriding concern in determining the sentence is the protection of the community. The provisions relating to the sentencing of serious offenders do not apply to matters that are finalised in the Magistrates’ Court. The Drug Court The Drug Court sits at the Melbourne, Dandenong, Shepparton and Ballarat Magistrates’ Courts. The Drug Court supervises some offenders with a drug problem by placing them on a Drug and Alcohol Treatment Order ( DATO ) (s 18X Sentencing Act). The DATO is designed for people who have committed drug-related offences (other than sexual offences or violent offences that cause injury) and are facing prison sentences. Typically, they are people who have committed dishonesty offences such as burglary and theft. If a person is accepted into the program, a DATO is made. A DATO is a custodial sentence that is not required to be served if various components of the individually tailored treatment program are complied with. Breaches of the order are sanctioned by short periods of imprisonment, with the offender still remaining on the order. The order focuses on drug reduction, lifestyle change, and avoidance of offending rather than zero tolerance. However, further offending is likely to result in a cancellation of the order and the original custodial sentence imposed, minus any imprisonment served as part of the DATO (for sanctions). For more information, contact the Drug Court (see ‘Contacts’). Commonwealth drug offences Commonwealth Criminal Code Principles of criminal responsibility codified In addition to drawing together major federal offences into one piece of legislation, the Criminal Code codifies the general principles of criminal responsibility applied to those offences. Within the Criminal Code, offences consist of ‘physical elements’ and ‘fault elements’ (rather than the traditional actus reus and mens rea of the common law). Physical elements Physical elements of codified offences may be ‘conduct’, ‘a result of conduct’ or ‘a circumstance in which conduct or a result of conduct occurs’. Absolute liability often applies to the physical elements of drug offences under the Criminal Code relating to the quantity of drugs. Under the definition in section 6.2(2) of the Criminal Code, ‘absolute liability’ means that there are no fault elements for that physical element. Absolute liability also means that the defence of ‘mistake of fact’ under section 9.2 is unavailable in relation to that physical element. (Section 6.2(3) states that the existence of absolute liability does not make any other defence unavailable.)