Victorian Numbered Acts Victorian Numbered Acts(1) For section 28(2)(b) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 substitute —
"(b) for a second offence, to a fine of not more than 120 penalty units or to imprisonment for not more than 12 months; and
(c) for a subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.".
(2) After section 28(2) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 insert —
"(2A) A person who is guilty of an offence under paragraph (b), (e) or (f) of subsection (1) is liable—
(a) in the case of a first offence, to a fine of not more than 20 penalty units; and
(b) in the case of a second offence—
(i) to a fine of not more than 60 penalty units or to imprisonment for a term of not more than 6 months if the concentration of alcohol—
(A) in the person's blood was less than 0·15 grams per 100 millilitres of blood; or
(B) in the person's breath was less than 0·15 grams per 210 litres of exhaled air—
as the case requires; or
(ii) to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person's blood was 0·15 grams or more per 100 millilitres of blood; or
(B) in the person's breath was 0·15 grams or more per 210 litres of exhaled air—
as the case requires; and
(c) in the case of any other subsequent offence—
(i) to a fine of not more than 120 penalty units or imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person's blood was less than 0·15 grams per 100 millilitres of blood; or
(B) in the person's breath was less than 0·15 grams per 210 litres of exhaled air—
as the case requires; or
(ii) to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months if the concentration of alcohol—
(A) in the person's blood was 0·15 grams or more per 100 millilitres of blood; or
(B) in the person's breath was 0·15 grams or more per 210 litres of exhaled air—
as the case requires.".
(3) In section 28(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 —
(a) for "subsection (1)(b), (c), (d), (e) or (f)" substitute "paragraph (ba), (c), (ca), (cb), (d) or (ea) of subsection (1)";
(b) for paragraph (b) substitute —
"(b) for a second offence, to a fine of not more than 120 penalty units or to imprisonment for not more than 12 months; and
(c) for a subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.".
(4) After section 28(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 insert —
"(3A) A person who is guilty of an offence under paragraph (bb), (eb), (g) or (h) of subsection (1) is liable—
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 60 penalty units; and
(c) in the case of any other subsequent offence, to a fine of not more than 120 penalty units.
(3B) In proceedings for an offence under paragraph (ba) of subsection (1), proof that—
(a) the person operated a vessel or was the master or pilot of a vessel underway or at anchor; and
(b) one or more drugs were present in the person's body at the time at which he or she operated the vessel or was the master or pilot of the vessel underway or at anchor; and
(c) the behaviour of the person on an assessment of drug impairment carried out under section 31AA was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and
(d) the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable—
(i) in the case of a person operating a vessel, to operate a vessel properly; or
(ii) in the case of a master or pilot of a vessel, direct the proper operation of the vessel—
is, in the absence of evidence to the contrary but subject to subsections (3C) and (3D), proof that the accused operated a vessel or was a master or pilot of a vessel underway or at anchor while impaired by a drug.
(3C) If on an analysis carried out in accordance
with this Part, no drug other than a permissible non-prescription drug or a
prescription drug was found present in the person's body, it is a defence to a
charge under paragraph (ba) of subsection (1) for the person charged to prove
that—
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(a) he or she did not know and could not reasonably have known that the permissible non-prescription drug or the prescription drug, or the combination of those drugs, so found would, if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs, impair—
(i) operating a vessel; or
(ii) in the case of a master or pilot of a vessel, directing the proper operation of a vessel; and
(b) he or she consumed or used that drug or combination of drugs in accordance with that advice.
(3D) In subsection (3C), "advice" means written or oral advice and includes anything written on a label accompanying the drug.".
(5) In section 28(5) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 for "subsection (1)(f)" substitute "paragraph (f), (g) or (h) of subsection (1)".
(6) After section 28(5A) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 insert —
"(6A) In any proceedings for an offence under paragraph (g) or (h) of subsection (1) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by section 27(1B) but is otherwise inadmissible.".
(7) After section 28(8) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 insert —
"(9) If on a prosecution for an offence under paragraph (a) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (ba) of that subsection, the court may find the accused guilty of an offence under paragraph (ba) and punish the accused accordingly.
(10) If on a prosecution for an offence under paragraph (ba) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (bb) of that subsection, the court may find the accused guilty of an offence under paragraph (bb) and punish the accused accordingly.".