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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 September 2021)

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 (not a drug of dependence) 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, or a prescription for 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 (petroleum product) to person under 16 years of age

Sell or supply volatile solvent (nitrous oxide) to a person under 18 years

19(3) $10 000
Controlled Drugs
Manufacture a controlled drug 33J(1) $35 000 / 7 years, or both (for a serious drug offender or an aggravated offence $75 000 / 15 years, or both)
Manufacture large commercial quantity of a controlled drug for sale 33(1) $1 000 000 / imprisonment for life, or both
Manufacture commercial quantity of a controlled drug for sale 33(2) $200 000 / 25 years, or both (for a serious drug offender or 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 a serious drug offender or 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 $15 000 / 3 years, or both (for a serious drug offender or an aggravated offence: $20 000 / 5 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 / 5 years, or both (for a serious drug offender or an aggravated offence: $30 000 / 7 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) $1 000 000 / imprisonment for life, or both
Traffic in commercial quantity 32(2) $200 000 / 25 years, or both (for a serious drug offender or an aggravated offence $500 000 / imprisonment for life, or both)
Traffic in a prescribed area 32(2a) $75 000 / 15 years, or both (for a serious drug offender or 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 a serious drug offender or 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 (for a serious drug offender or an aggravated offence: $75 000 / 15 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 (for a serious drug offender or an aggravated offence: $75 000 / 15 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 or supply of prescribed equipment (hydroponic equipment for cannabis cultivation, equipment for manufacturing controlled drugs, a device comprising a hydraulic compression system and a die capable of being used to compress a powdered substance into blocks) 33LA $10 000 / 2 years, or both (for a serious drug offender or an aggravated offence: $20 000 / 5 years, or both)
Cannabis
Cultivate Cannabis for Sale
Cultivate large commercial quantity of a controlled plant for sale (includes cannabis) 33B(1) $1 000 000 / 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 a serious drug offender or 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 a serious drug offender or 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) $1 000 000 / 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 a serious drug offender or 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 a serious drug offender or 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) $15 000 / 3 years, or both
Possession of cannabis, cannabis resin or cannabis oil with intention to supply or administer to another person 33I(2)(b) $15 000 / 3 years, or both
Cultivate Cannabis
Cultivate a cannabis plant by artificially enhanced cultivation 33K(1)(ab)

$2 000 / 2 years, or both (for a serious drug offender or aggravated offence: $5 000 / 5 years, or both)

Cultivate more than prescribed number of cannabis plants (5 plants) 33K(1)(b) $2 000 / 2 years, or both (for a serious drug offender or an aggravated offence: $5 000 / 5 years, or both)
Cultivate a cannabis plant intended for supply or administration to another person 33K(1)(c) $2 000 / 2 years, or both (for a serious drug offender or an aggravated offence: $5 000 / 5 years, or both)
Cultivate not more than prescribed number of cannabis plants (5 plants) 33K(2) $2 000 / 2 years, 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) $2000

For a simple cannabis offence: (less than 100 grams cannabis, 20 grams of cannabis resin or 0 millilitres of cannabis oil as defined in s 45A) – Expiable Offence
Smoke or consume cannabis, cannabis oil, or cannabis resin 33L(2)(b) $2000

For a simple cannabis offence: (which excludes an offence committed in public place including in a motor vehicle, train, tram or any other vehicle, 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) $2000

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