Victorian Current Acts Victorian Current ActsS. 76(1) amended by No. 49/1991
s. 119(7)
(Sch. 4 item 6).
(1) Where before the Magistrates' Court—
S. 76(1)(a) amended by No. 48/1997 s. 43(1)(a).
(a) in relation to cannabis—
S. 76(1)(a)(i) amended by No. 61/2001 s. 7(a).
(i) a person is charged with an offence under section 72B and at the hearing the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in cannabis;
(ii) a person is charged with an offence under section 73 and at the hearing the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in cannabis;
(iii) a person is charged with an offence under section 75; or
(iv) a person is charged with an offence under section 79 or section 80, being an offence that relates to an offence mentioned in subparagraphs (i), (ii) or (iii) of this paragraph and, where that last-mentioned offence relates to the possession or cultivation of cannabis, the court is satisfied on the balance of probabilities that the last‑mentioned offence would not have been committed by the person for any purpose relating to trafficking in cannabis or the court is satisfied on the balance of probabilities that the last‑mentioned offence would, if committed, have related to a quantity of cannabis which was not more than the small quantity applicable to cannabis; and
S. 76(1)(ab) inserted by No. 48/1997 s. 43(1)(a).
(ab) in relation to any drug of dependence specified in column 1 of Part 3 of Schedule Eleven—
(i) a person is charged with an offence under section 73 and at the hearing the court is satisfied on the balance of probabilities that the offence—
(A) was committed in relation to a quantity of that drug which was not more than the small quantity applicable to that drug; and
(B) was not committed for any purpose relating to trafficking in that drug; or
(ii) a person is charged with an offence under section 75 and at the hearing the court is satisfied on the balance of probabilities that the offence was committed in relation to a quantity of that drug which was not more than the small quantity applicable to that drug; or
(iii) a person is charged with an offence under section 79 or section 80, being an offence that relates to an offence mentioned in subparagraphs (i) or (ii), and the court is satisfied on the balance of probabilities that the last-mentioned offence—
(A) would, if committed, have been committed in relation to a quantity of that drug which was not more than the small quantity applicable to that drug; and
(B) would not have been committed for any purpose relating to trafficking in that drug; and
S. 76(1)(ac) inserted by No. 2/2016 s. 13(1).
(ac) a person is charged with an offence under section 71E and at the hearing the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to cultivating or trafficking in a drug of dependence; and
S. 76(1)(b) amended by Nos 48/1997 s. 43(1)(b), 2/2016 s. 13(2).
(b) a person mentioned in paragraph (a), (ab) or (ac) has not previously been convicted of an offence under—
(i) section 36B(2), Part III of this Act or this Part;
(ii) Part II or Part III of the Poisons Act 1962 ;
S. 76(1)(b)(iii) repealed by No. 46/2008 s. 275(3)(a).
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S. 76(1)(b)(iv) amended by No. 46/2008 s. 275(3)(b).
(iv) a provision of the law of another State or Territory of the Commonwealth corresponding to any provision mentioned in subparagraphs (i) or (ii); or
S. 76(1)(b)(v) amended by No. 93/2005 s. 14(1).
(v) Division 2 of Part XIII of the Act of the Commonwealth known as the Customs Act 1901 as amended and in force for the time being; or
S. 76(1)(b)(vi) inserted by No. 93/2005 s. 14(2).
(vi) section 307.1, 307.2, 307.3, 307.4, 307.5, 307.6, 307.7, 307.8, 307.9 or 307.10 of the Criminal Code of the Commonwealth as amended and in force for the time being—
and has not previously been dealt with under this section; and
S. 76(1)(c) amended by Nos 48/1997 s. 43(1)(b), 2/2016 s. 13(3).
(c) in relation to a person mentioned in paragraph (a), (ab) or (ac) the court is satisfied beyond reasonable doubt that the person is guilty of the offence with which he is charged—
the court, without proceeding to conviction, shall having regard to the character and antecedents of the person and to all the circumstances and the public interest, adjourn the further hearing to a time and place to be fixed (such time being not more than twelve months thereafter) and allow the person charged to go at large upon his giving an undertaking under section 75(1) of the Sentencing Act 1991 , unless the court considers it appropriate to proceed to a conviction.
S. 76(1A) inserted by No. 48/1997 s. 43(2).
(1A) If a person to whom subsection (1) applies
is,
on a charge for an offence in relation to a
drug of dependence other than
cannabis or tetrahydrocannabinol, released on giving an undertaking under
section 75(1) of the Sentencing Act 1991 , the court must attach to the
undertaking a condition that the person completes an approved drug education
and information program.
(2) Where subsection (1) applies to a person and the magistrates' court proceeds to a conviction, the court shall state its reasons for doing so.
S. 76(3) amended by No. 48/2006 s. 42(Sch. item 11).
(3) In determining whether a person has been previously convicted of an offence for the purposes of paragraph (b) of subsection (1), proceedings under the Children, Youth and Families Act 2005 or under any Act of the Commonwealth or of a State or Territory of the Commonwealth which corresponds to that Act shall be disregarded.
S. 76(4) inserted by No. 48/1997 s. 43(3), amended by No. 46/1998 s. 7(Sch. 1).
(4) A person or body may apply to the Secretary for approval for a program for the purposes of this section.
S. 76(5) inserted by No. 48/1997 s. 43(3).
(5) An application under subsection (4) must be accompanied by the prescribed application fee.
S. 76(6) inserted by No. 48/1997 s. 43(3), amended by No. 46/1998 s. 7(Sch. 1).
(6) The Secretary—
(a) may grant an approval subject to any conditions, limitations or restrictions specified in the approval; and
(b) must specify the period during which an approval continues in force.
S. 77 substituted by No. 10002 s. 7(1), amended by Nos 48/1997 s. 41(8), 20/2016 s. 136 (ILA s. 39B(1)).