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Sentencing Considerations

The Sentencing Act 2017 (SA) sections 3, 4, 10 and 11 prescribe the matters relevant to sentencing which must be considered by a sentencing court [see Sentencing and Guilty Pleas chapters for a detailed discussion of sentencing purposes, principles and factors]. 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

BRIEF PENALTY SUMMARY - CONTROLLED SUBSTANCES ACT 1984 (as at 4 May 2018)

Description of offence Section Maximum Penalty (Fine/Imprisonment)
Prescription Drugs
Unlawful sale, supply or administer a prescription drug

18(1)

(1a) - (1c)

$10 000 / 2 years
Unlawful possession of a prescription drug 18(3) $10 000 / 2 years
Forge or fraudulently alter or utter a prescription or other document to obtain a prescribed drug 30(1) $15 000 / 5 years
Possession of a forged or fraudulently altered prescription or document to obtain a prescribed drug 30(1) $15 000 / 5 years
Obtain prescription drug by false representation 30(2) $10 000 / 2 years
Obtain prescription drug by using a false name or address 30(2a) $10 000
Volatile Solvents
Sale or supply of volatile solvent for inhalation 19(1) $10 000 / 2 years
Purchase a volatile solvent for another person for inhalation 19(2) $10 000 / 2 years
Sell or supply volatile solvent to person under 16 years of age 19(3) $10 000
Controlled Drugs
Manufacture a controlled drug 33J(1) $35 000 / 7 years, or both
Manufacture large commercial quantity of a controlled drug for sale 33(1) $500 000 / imprisonment for life, or both
Manufacture commercial quantity of a controlled drug for sale 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 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 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 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 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 33G $1 000 000 / imprisonment for life, or both
Trafficking in controlled drugs
Traffic in large commercial quantity 32(1) $500 000 / imprisonment for life, or both
Traffic in commercial quantity 32(2) $200 000 / 25 years, or both (For an aggravated offence $500 000 / imprisonment for life, or both)
Traffic in a prescribed area 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
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) 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) 33I(1)(b) $50 000 / 10 years, or both
Controlled Drug - User Offences
Possession of a controlled drug (not cannabis) 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 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 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) 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) 33B(1) $500 000 / imprisonment for life, or both
Cultivate commercial quantity of a controlled plant for sale (includes cannabis) 33B(2) $200 000 / 25 years, or both (for an aggravated offence: $500 000 / imprisonment for life, or both)
Cultivate a controlled plant for sale

33B(3)

$50 000 / 10 years, or both (for an aggravated offence: $75 000/ 15 years or both)

Cultivate a cannabis plant (only) for sale 33B(4) As above, but must be prosecuted in Magistrates Court where maximum penalty is 5 years unless referred to District Court for sentence.
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) 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) 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 (includes cannabis) 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 (only) with intention to sell 33C(4) As above, but must be prosecuted in Magistrates Court where maximum penalty is 5 years unless referred to District Court for sentence.
Supply or administer cannabis
Supply or administer cannabis, cannabis resin or cannabis oil to another person 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 33I(2)(b) $2 000 / 2 years, or both
Cultivate Cannabis
Cultivate a cannabis plant by artificially enhanced cultivation 33K(1)(ab) $2 000 / 2 years, or both
Cultivate more than prescribed number of cannabis plants (5 plants) 33K(1)(b) $2 000 / 2 years, or both
Cultivate a cannabis plant intended for supply or administration to another person 33K(1)(c) $2 000 / 2 years, or both
Cultivate not more than prescribed number of cannabis plants (5 plants) 33K(2) $1 000 / 6 months, or both

For a simple cannabis offence: (one cannabis plant) imprisonment must not be imposed – as defined in s 45A Expiable Offence
Cannabis - User Offences
Possession of cannabis, cannabis oil or cannabis resin 33L(2)(a) $500

For a simple cannabis offence: (100 grams cannabis, or 20 grams of cannabis resin as defined in s 45A) – Expiable Offence
Smoke or consume cannabis, cannabis oil, or cannabis resin 33L(2)(b) $500

For a simple cannabis offence: (as defined in s 45A) – 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 33L(2)(c) $500

For a simple cannabis offence: (as defined in s 45A) – Expiable Offence
Sentencing Considerations  :  Last Revised: Fri May 4th 2018