The Criminal Law (Sentencing) Act 1988 section 10 prescribes the matters relevant to sentencing which must be considered by a sentencing court [see s 10; Sentencing and Guilty Pleas chapters for a detailed discussion of s 10]. In addition, the Controlled Substances Act 1984 section 44 outlines matters a sentencing court must take into account when sentencing for drug offences. For indictable or minor indictable offences, the sentencing court must take into consideration:
- The nature and quantity of the substance or goods involved in the commission of the offence [see Controlled Substances Act ss 44(1)(a) and 44(1)(b ) ];
- The personal circumstances of the convicted person including personal use of any controlled drug [see s 44(1)(c)].
In relation to offences against Part 5 Division 2 or 3 (trafficking, manufacture and sale of controlled drugs, cultivation and sale of controlled plants):
- The commercial or other motives of the convicted person whilst committing the offence [see s 44(1)(d)(i)];
- The financial gain likely to be accrued as a result of the commission of the offence [see s 44(1)(d)(ii)].
In the case of an offence against s 33F (the sale, supply or administration of a controlled drug to a child), s 33H (procuring a child to commit an offence), s 33I (supply or administer a controlled drug):
- Whether the offence occurred within a school zone or prescribed place [see s 44(1)(da)].
In the case of an offence involving possession of a drug of dependence (or a prohibited substance) for the purpose of sale, supply or administration of the drug or substance to another person (not being an offence committed within a school zone):
- Whether the offence occurred at or near any other prescribed place [see s 44(1)(db)];
- Any other relevant factor [see s 44(1)(e)].
In determining the penalty for any summary or indictable offence against pt 5 involving a controlled drug (but not cannabis, cannabis resin, or cannabis oil) the penalty must be determined on the basis that all controlled drugs are categorised equally as very harmful [see s 44(2)].
Section 44(1) came into effect on 3 December 2007, and only applies to offences committed on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
Sections 44(2) and 44(3) came into effect on 10 September 2009, and only apply to offences committed on or after that date [see Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008].
BRIEF PENALTY SUMMARY - CONTROLLED SUBSTANCES ACT 1984 ( as at 26 July 2012) | ||
|---|---|---|
| Description of offence | Section | Maximum Penalty (Fine/Imprisonment) |
| Prescription Drugs | ||
| Unlawful sale, supply or administer a prescription drug | ss 18(1), 18 (1a), 18(1b), 18(1c) | $10 000 / 2 years |
| Unlawful possession of a prescription drug | s 18(3) | $10 000 / 2 years |
| Forge or fraudulently alter or utter a prescription or other document to obtain a prescribed drug | s 30(1) | $15 000 / 5 years |
| Possession of a forged or fraudulently altered prescription or document to obtain a prescribed drug | s 30(1) | $15 000 / 5 years |
| Obtain prescription drug by false representation | s 30(2) | $10 000 / 2 years |
| Obtain prescription drug by using a false name or address | s 30(2a) | $10 000 |
| Volatile Solvents | ||
| Sale or supply of volatile solvent for inhalation | s 19(1) | $10 000 / 2 years |
| Purchase a volatile solvent for another person for inhalation | s 19(2) | $10 000 / 2 years |
| Sell or supply volatile solvent to person under 16 years of age | s 19(3) | $10 000 |
| Controlled Drugs | ||
| Manufacture a controlled drug | s 33J(1) | $35 000 / 7 years, or both |
| Manufacture large commercial quantity of a controlled drug for sale | s 33(1) | $500 000 / imprisonment for life, or both |
| Manufacture commercial quantity of a controlled drug for sale | s 33(2) | $200 000 / 25 years, or both (for an aggravated offence $500 000 / imprisonment for life, or both) |
| Manufacture a controlled drug for sale | s 33(3) | $50 000 / 10 years, or both (for an aggravated offence $75 000/15 years or both) |
| Sale or possession of equipment | ||
| Sale or possession with an intention to sell, of equipment used for the preparation of, or for smoking, consuming or administering a controlled drug | s 33D | $10 000 / 2 years, or both |
| Sell, supply or administer to a child | ||
| Sell, supply, or administer a controlled drug to a child or possession of a controlled drug intending to sell, supply or administer to a child | s 33F | $1 000 000 / imprisonment for life, or both |
| Sale of equipment to a child for use in connection to smoking, consuming, or administering a controlled drug or possession of equipment intended for sale to a child | s 33GA | $20 000 / 2 years, or both |
| Sell, supply or administer in school zone | ||
| Sell, supply, or administer a controlled drug to a person in a school zone, or possession of a controlled drug in a school zone intending to sell, supply or administer the drug to another person | s 33G | $1 000 000 / imprisonment for life, or both |
| Trafficking in controlled drugs | ||
| Traffic in large commercial quantity | s 32(1) | $500 000 / imprisonment for life, or both |
| Traffic in commercial quantity | s 32(2) | $200 000 / 25 years, or both (For an aggravated offence $500 000 / imprisonment for life, or both) |
| Traffic in a prescribed area | s 32(2a) | $75 000 / 15 years, or both (for an aggravated offence $200 000 / 25 years, or both) |
| Traffic in a controlled drug**see Cannabis section for traffic in cannabis | s 32(3) | $50 000 / 10 years, or both (For an aggravated offence $75 000 / 15 years, or both) |
| Supply or administer controlled drug | ||
| Supply or administer a controlled drug to another person (not cannabis) | s 33I(1)(a) | $50 000 / 10 years, or both |
| Possession of a controlled drug with intention to supply or administer to another person (not cannabis) | s 33I(1)(b) | $50 000 / 10 years, or both |
| Controlled Drug - User Offences | ||
| Possession of a controlled drug (not cannabis) | s 33L(1)(a) | $2 000 / 2 years, or both |
| Smoke, consume or administer a controlled drug to oneself or allow another person to administer a controlled drug to oneself | s 33L(1)(b) | $2 000 / 2 years, or both |
| Possession of equipment for use in connection with the smoking, consumption, administration, or preparation for use of a controlled drug | s 33L(1)(c) | $2 000 / 2 years, or both |
| Equipment for manufacture or cultivation | ||
| Possession of prescribed equipment (hydroponic equipment for cannabis cultivation, equipment for manufacturing controlled drugs, instructions for cultivation of cannabis or manufacture of controlled drug) | s 33LA(1) | $10 000 / 2 years, or both |
| Cannabis | ||
| Cultivate Cannabis for Sale | ||
| Cultivate large commercial quantity of a controlled plant for sale (includes cannabis) | s 33B(1) | $500 000 / imprisonment for life, or both |
| Cultivate commercial quantity of a controlled plant for sale (includes cannabis) | s 33B(2) | $200 000 / 25 years, or both (for an aggravated offence: $500 000 / imprisonment for life, or both) |
| Cultivate a cannabis plant for sale | s 33B(3) & s 33B(4) |
2 years if sentenced in Magistrates Court but can be referred to District Court for sentence if offence merits a higher penalty. (In that case $50 000 / 10 years, or both or for an aggravated offence: $75 000/ 15 years or both) |
| Sale or Possession of Cannabis for Sale | ||
| Sale of a large commercial quantity of a controlled plant or possession with intention to sell (includes cannabis - prescribed amount - 100 plants) | s 33C(1) | $500 000 / imprisonment for life, or both |
| Sale of a commercial quantity of a controlled plant or possession with intention to sell (includes cannabis - prescribed amount - 20 plants) | s 33C(2) | $200 000 / 25 years, or both (for an aggravated offence: $500 000 / imprisonment for life, or both) |
| Sale of a controlled plant or possession with intention to sell (not cannabis) | s 33C(3) | $50 000 / 10 years, or both (for an aggravated offence: $75 000/ 15 years or both) |
| Sale or possession of a cannabis plant with intention to sell | s 33C(3) & s 33C(4) | 2 years if sentenced in Magistrates Court but can be referred to District Court for sentence if offence merits a higher penalty |
| Supply or administer cannabis | ||
| Supply or administer cannabis, cannabis resin or cannabis oil to another person | s 33I(2)(a) | $2 000 / 2 years, or both |
| Possession of cannabis, cannabis resin or cannabis oil with intention to supply or administer to another person | s 33I(2)(b) | $2 000 / 2 years, or both |
| Cultivate Cannabis | ||
| Cultivate a cannabis plant by artificially enhanced cultivation | s 33K(1)(ab) | $2 000 / 2 years, or both |
| Cultivate more than prescribed number of cannabis plants (5 plants) | s 33K(1)(b) | $2 000 / 2 years, or both |
| Cultivate a cannabis plant intended for supply or administration to another person | s 33K(1)(c) | $2 000 / 2 years, or both |
| Cultivate not more than prescribed number of cannabis plants (5 plants) | s 33K(2) | $1 000 / 6 months, or bothFor a simple cannabis offence: (one cannabis plant) imprisonment must not be imposed à as defined in s 45A Expiable Offence |
| Cannabis - User Offences | ||
| Possession of cannabis, cannabis oil or cannabis resin | s 33L(2)(a) | $500For a simple cannabis offence: (100 grams cannabis, or 20 grams of cannabis resin as defined in s 45A) Ã Expiable Offence |
| Smoke or consume cannabis, cannabis oil, or cannabis resin | s 33L(2)(b) | $500For a simple cannabis offence: (as defined in s.45A) Ã Expiable Offence |
| Possession of equipment for use in connection with the smoking, consumption, administration, or preparation for use of cannabis, cannabis oil or cannabis resin | s 33L(2)(c) | $500For a simple cannabis offence: (as defined in s 45A) Ã Expiable Offence |
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