Updated: Apr 18
An overview of the elements, penalties and defences
All drug offences are prosecuted under the Drugs Poisons and Controlled Substances Act 1981 (Vic) (The Act). Some drug offences can be heard and finalised in the Magistrates' Court whereas more serious offences such as commercial or large commercial drug trafficking must be heard in either the County or Supreme Court of Victoria.
To secure a finding of guilt for the offence of Trafficking in a Drug of Dependence, the prosecution must prove beyond reasonable doubt several elements.
Severity of the offence depends upon a variety of factors, but mainly the quantity of the alleged drug of dependence
There are 3 categories of drug trafficking on an escalating scale of seriousness:
- Trafficking in a drug of dependence - traffickable quantity (Section 71AC of the Act)
- Trafficking in a drug of dependence - commercial quantity (Section 71AA of the Act)
- Trafficking in a drug of dependence - large commercial quantity (Section 71 of the Act)
Schedule 11 of the Act sets out an extensive table of drugs, and the applicable quantities for a small quantity, traffickable quantity, commercial quantity, and large commercial quantity. It is important to note that when calculating a quantity, the Act provides for a weight based upon more than one prescribed drug of dependence. Schedule 11 provides that a prescribed quantity (traffickable, commercial or large commercial quantity) may be reached when a drug is mixed with another substance. For example, under Schedule 11, a commercial quantity of amphetamine is reached at 500 grams as a mixture of drug and substance. In the case of a pure concentration of drug, the commercial quantity for amphetamine is 100 grams.
The prosecution must prove beyond reasonable doubt the following:
- A person, without authorisation (under the Voluntary Assisted Dying Act 2017);
- Trafficks or attempts to traffick
- Drug of dependence
Meaning of traffick(s)
Under Section 70 of the Act, to traffick means to:
(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c) sell, exchange, agree to sell, offer for sale, or have in possession for sale, a drug of dependence.
Meaning of drug of dependence
Section 4 of the Act provides an expansive definition:
a) a drug—
(i) specified in column 1 of Part 1 of Schedule Eleven; or
(ii) included in a class of drug specified in column 1 of Part 1 of Schedule Eleven; or
(b) any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven; or
(c) a drug—
(i) specified in column 1 of Part 3 of Schedule Eleven; or
(ii) included in a class of drug specified in column 1 of Part 3 of Schedule Eleven—
(d) any form of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic, and the salts, analogues, derivatives and isomers of that drug and any salt of those analogues, derivatives and isomers; and
(i) drug specified in, or drug included in a class of drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic; or
(ii) salts, analogues, derivatives or isomers of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven; or
(iii) salt of any analogue, derivative or isomer mentioned in subparagraph (ii)—
contained in or mixed with another substance;
The prescribed quantity must also be proved in more serious cases alleging commercial or large commercial drug trafficking.
Where the prosecution allege that an offender trafficked a commercial or large commercial quantity this too must be proved beyond reasonable doubt as a discrete element of the offence. See above the discussion and in particular see Schedule 11 of the Act.
Proving the weight and nature of an alleged drug of dependence is established through the production of expert evidence (certificates).
To learn more about how an allegation of Trafficking a drug of dependence can affect an accused person's ability to be released from custody on bail read our blog.
The presumption of a traffickable quantity
Under Schedule 11, the Act prescribes various traffickable quantities according depending upon the particular drug. A traffickable quantity for cannabis is found in Schedule 11 of the Act and is 250 grams or 10 plants. In the case of cocaine, it is 3 grams.
Frequently, police will charge an offender with the offence of trafficking a drug of dependence on the basis of having in their possession a 'traffickable quantity'. However, where there is no other evidence that supports drug trafficking (deal bags, large quantity of cash, text messages over mobile phone, scales, incriminating admissions made during a record of interview etc), it will be difficult for the police to secure a conviction based solely on an offender's possession of a traffickable quantity.
The penalties for trafficking in a drug of dependence
At the lowest end of criminality, an allegation of trafficking a drug of dependence simpliciter can be heard in the Magistrates' Court. While each case will turn upon its own particular facts, some guidance as to the penalties imposed for this offence can be derived from the Sentencing Advisory Council. During the period 1 July 2016 - 30 June 2019, the offence of Trafficking a drug of dependence when heard in the Magistrates’ Court resulted in the following penalties:
Imprisonment - 44.2%
Community Correction Order - 39.9%
Fine - 10.3%
Adjourned undertaking/discharge/dismissal - 3.1%
Penalties for commercial and large commercial drug trafficking will usually result in a term of imprisonment to be served
Police can make an application for forfeiture of property tainted as a consequence of drug trafficking, and in more serious cases forfeiture is automatic upon a finding of guilt.
The Confiscation Act 1997 (Vic) regulates the power of the prosecution to compel an offender to forfeit property that is tainted as a consequence of drug trafficking. Cash derived from trafficking will be forfeited, as will other items that were used to facilitate trafficking, such as a mobile phone.
In more serious examples of drug trafficking, property received through proceeds of crime (for example real estate or other substantial items such as cars) can also be the subject of a forfeiture Order. Police may also apply for a restraining order to prevent the disposal of property alleged to have been tainted. Property so restrained may then be subject to automatic forfeiture upon a finding of guilt for commercial and large commercial drug trafficking.
Get advice, prepare early
An allegation of drug trafficking is obviously serious. The offence is one which will often result in the recording of a conviction, however the alleged criminality that underpins an allegation of trafficking can vary enormously, and the definition of trafficking is expansive and includes activity that does not have a strong commercial element. If you are facing a drug offence, call our office on (03) 9668 7600 to arrange an obligation free case assessment to discuss all of your options.