Drug Trafficking

Drug trafficking is a criminal offence involving the sale, manufacture, possession for the purpose of sale or offering for sale a significant quantity of drugs or drugs of dependence. There are numerous offences associated with drug trafficking, including preparation of the drugs, manufacturing the drugs, selling, agreeing to sell or exchanging, offering the drugs for sale or buying the drugs for someone else.

The Offences

There are four key offences that relate to Drug Trafficking, namely:

1. Trafficking in a Large Commercial Quantity of a Drug of Dependence;[1]
2. Trafficking in a Commercial Quantity of a Drug of Dependence;[2]
3. Trafficking in a Drug of Dependence to a Child;[3] and
4. Trafficking in a Drug of Dependence.[4]

Elements of the Drug Trafficking Offence

In order to prove the elements of a drug trafficking offence, the Police are required to prove the following elements beyond reasonable doubt that:

1. You intentionally trafficked, attempted to traffick a substance or carried on a business of trafficking drugs; and
2. You intentionally trafficked in a drug of dependence.

If your charge relates to trafficking a drug of dependence to a child, the Police must also prove that you trafficked the drugs of dependence to a child under the age of 18.

Trafficking means to prepare a drug of dependence for trafficking or to manufacture a drug of dependence, or to sell, exchange, offer or agree to sell or have in possession for sale a drug of dependence.[5] For example, the presence of a large quantity of drugs, in addition to the possession of goods, materials or equipment (such as plastic bags, measuring scales, large quantities of cash or drug presses) may indicate to Police that the drugs are intended to be sold and/or trafficked.[6]

Possession is also not required, what is key is whether you made an offer to sell or agreement to traffick in a drug of dependence.

Possible Penalties for Drug Trafficking

Penalties for Drug Trafficking vary, depending on the specific weight of drugs that was or intended to be trafficked. However, Drug Trafficking in a Large Commercial Quantity is a ‘Category 1 Offence’, meaning that if you are found guilty a term of imprisonment must be imposed.[7] The maximum penalties are set out below:

It is also illegal to possess a tablet press chemical associated with drug production. Possession of wither of these articles carries a possible penalty of 5 years imprisonment and a significant fine.[8] This increases to 10 years imprisonment for possession of substances, documents, equipment or other materials that can be related to the preparation of drugs for trafficking. [9]

Defences Available

You will have a defence to your charge if the alleged substance was not a drug of dependence. You will also have a defence if the specific ‘trafficable quantity’ or weight required for drug trafficking is not met.

It is also a defence to your charge if you did not possess the relevant intention to traffick the drug of dependence.[10] For example, if you had no knowledge that the substance was a drug of dependence or was not aware of the likelihood that the substance was a drug.

You will have a defence to your charge if you can establish an exemption or authorisation to traffick the drugs of dependence.[11]

You may also have a defence of reasonable mistake or a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71.
[2] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA.
[3] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AB.
[4] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC.
[5] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.
[6] R v Giretti (1986) 24 A Crim R 112.
[7] Sentencing Act 1991 (Vic) s 3, 5(2G); Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71(1).
[8] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71C.
[9] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71(1)(a).
[10] R v Bui [2005] VSCA 300.
[11] Drugs, Poisons and Controlled Substances Act 1981 (Vic) Divisions 2 and 4; Access to Medical Cannabis Act 2016 (Vic).