Drug Trafficking: What are the quantities?

Have you been charged with drug trafficking?

If you have been charged for possession of substance, material, documents or equipment for trafficking a drug of dependence, you would be well advised to consult an experienced drug charges lawyer to help you through the quagmire that is the law that surrounds drug offending. 

An experienced criminal lawyer can assist you in understanding what you’ve been charged with and your options and guide you through the legal process.

Things to consider with your lawyer include:

• Can the prosecution make out their case?
• Which substances, materials, documents, or equipment did you possess?
• Did these materials relate to trafficking in a drug of dependence?
• Did you act alone?
• What was your role?
• Are any defences available to you?

Drug trafficking offences in Victoria

Sections 71 to 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Drugs Act) create offences relating to Drug Trafficking. The most common offences charged are:

• S 71 Trafficking in a drug or drugs of dependence—large commercial quantity
• S 71AA Trafficking in a drug or drugs of dependence—commercial quantity
• S 71AC Trafficking in a drug of dependence (trafficking simplicita)

What does the prosecution have to prove?

For each of the trafficking offences, the prosecution must prove the following elements beyond reasonable doubt:

(1) the accused intentionally ‘trafficked‘ or ‘attempted to traffick’ in a particular substance; and

(2) the accused intentionally trafficked in a drug of dependence;

Concerning trafficking offences 71 and 71AA, respectively, the prosecution must prove a third element:

(3) the accused intentionally trafficked or attempted to traffick in a quantity of drugs that was not less than a large commercial quantity or a commercial quantity.

Under s 73(2) of the Drugs Act, possession of not less than a trafficable quantity (specified in Schedule 11) is prima facie evidence of trafficking for an offence under s 71AC, satisfying elements 1 and 2 only for s 71 and 71AA offences (see more below).

What is drug trafficking?

The first element for these offences depends on the specific trafficking conduct alleged. ‘Trafficking’ is defined in s 70(1) of the Drugs Act, but it is also possible to rely on the common law definition of trafficking (R v Giretti (1986) 24 A Crim R 112).

Trafficking is defined in s 70(1) of the Drugs Act to include:

• Preparing a drug of dependence for trafficking;
• Manufacturing a drug of dependence; or
• Selling, exchanging, agreeing to sell, offering for sale or having in possession for sale, a drug of dependence.

While the terms’ manufacture’ and ‘sell’ are defined in s 4 of the Drugs Act, per s 70(2), these definitions do not apply to trafficking offences.

At common law, trafficking has been held to be:

1. An activity performed in a commercial setting (an inference that clearly identifies that someone involved in the transaction is making a profit);
2. Participation by the alleged trafficker in the process of goods from the source to the consumer; and
3. Contact between the alleged trafficker and at least one other person (R v Holman[1982] VR 471; Giretti v R(1986) 24 A Crim R 112).

Preparing a drug of dependence for trafficking

For trafficking by ‘preparing a drug of dependence for trafficking’, the prosecution must prove that the accused:

• Prepared a drug of dependence;
• Intended to prepare that drug; and
• Prepared the drug for the purpose of trafficking (R v Giretti (1986) 24 A Crim R 112).

This requires the prosecution to prove that when the accused prepared the drug, they intended either that the drug would be dealt with in a way specified by the definition of ‘trafficking’ in s70(1) or that it would be trafficked in the manner defined by the common law.

Agreeing to sell or offer to sell a drug of dependence

For trafficking by ‘agreeing to sell’ or ‘offer for sale’ a drug of dependence per s 70(1), the prosecution must prove that the accused:

• Made a genuine agreement or offer to sell;
• Intended to make that agreement or offer; and
• Intended the agreement or offer to be regarded as genuine (R v Peirce [1996] 2 VR 215; Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW CCA)).

Concerning the agreement to sell or to offer to sell, the prosecution doesn’t need to prove that the accused possessed the relevant drug, intended to complete the sale, or could have supplied the drug to the purchaser (Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW CCA); R v Peirce [1996] 2 VR 215).

Possessing a drug of dependence for sale

For a charge of trafficking by ‘having in possession for sale’ a drug of dependence under s 70(1), the prosecution must prove that:

• the accused possessed a drug of dependence; and
• the accused intended to sell that drug (e.g. R v Francis-Wright (2005) 11 VR 354).

The prosecution must prove ‘possession for sale’ at common law to establish these elements. Section 5 of the Drugs Act, which specifies circumstances in which a person is considered in possession, does not apply to trafficking charges based on possession (Momcilovicv v R (2011) 245 CLR 1).

Possession of a drug of dependence at common law has three elements:

1. The accused had physical custody or control of the drug;
2. The accused intended to have custody of or exercise control over the drug; and
3. The accused knew that the substance over which they had custody or control was a drug of dependence or were aware that it was likely that it was a drug of dependence (R v Maio [1989] VR 281; He Kaw Teh v R (1985) 157 CLR 523; Momcilovic v R (2011) 245 CLR 1).

Giretti Trafficking

Trafficking charges can be established by proving an accused committed the offending conduct either limited to a single transaction or a course of conduct that occurs on multiple occasions and is laid by the prosecution as a between-dates charge.

This latter type of trafficking is known as ‘Giretti’ trafficking, where it is alleged that the accused person was ‘carrying on a business of trafficking’ over a specified period of time (see Giretti v R (1986) 24 A Crim R 112). For the prosecution to allege a course of conduct, the brief of evidence will usually have text messages or phone intercepts to support such charges.

What is a drug of dependence?

‘Drug of dependence’ is defined in s 4 of the Drugs Act to include:

• Any form of the drugs specified in Parts 1 and 3 of Schedule Eleven to the Drugs Act, whether natural or synthetic;
• The salts, analogues, derivatives and isomers of the drugs specified in Parts 1 and 3 of Schedule Eleven to the Drugs Act;
• The salt of the analogues mentioned above, derivatives and isomers;
• Any substances that are included in the classes of drugs specified above; and
• The fresh or dried parts of the plants specified in Part 2 of Schedule Eleven.

Commonly known drugs specified in Parts 1 and 3 of Schedule Eleven of the Drugs Act include heroin, cannabis, cocaine, ecstasy, amphetamine, steroids, LSD, methamphetamines, ICE, and ketamine.

Intention to traffick a drug of dependence

Each trafficking offence requires the prosecution to prove that the accused intended to traffick in a drug of dependence. The prosecution must prove that the accused intended to traffick a drug of dependence; however, it is not necessary that the accused intended to traffick the particular drug in question (He Kaw Teh v R (1985) 157 CLR 523).

Intention to traffick in a commercial or large commercial quantity

The third element that the prosecution must prove for offences under sections 71 (trafficking a large commercial quantity) and 71AA (trafficking in a commercial quantity) is that the accused intended to traffick in not less than the specified quantity of the relevant drug R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Mustica v R (2011) 31 VR 367).

It is not sufficient for the prosecution to prove that the accused intended to traffick in a drug of dependence that weighed the specified amount. Instead, the question is whether the accused intended to cultivate a quantity that was at least the weight or number specified in Schedule Eleven of the Drugs Act (R v Garlick (No.2) (2007) 15 VR 388). This element considers the accused’s state of mind.

The prosecution can prove this element if it is established:

• the accused knew or was aware that they trafficked in at least the specified quantity; or
• the accused was aware there was a significant or real chance that they would traffick in at least that quantity.

Whether the accused had the requisite knowledge is a question of fact for the jury to determine based on all of the facts and circumstances, and such a finding cannot be made if any other inference is reasonably open (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA 54).

What is prima facie evidence of trafficking?

If an accused person possesses a ‘traffickable quantity’ of drugs (specified in Schedule 11), this is referred to as prima facie evidence of trafficking. This means that a court can be satisfied beyond reasonable doubt that an accused is guilty of an offence of trafficking under s 71AC based on this evidence alone (that is, the weight possessed by the accused is of a traffickable amount). For offences under sections 71 or 71AA (trafficking of a commercial or large commercial quantity), possession of a ‘traffickable quantity’ satisfies elements 1 and 2 of the offence only.

The burden, however, remains on the prosecution to prove, beyond reasonable doubt, the charge (that an accused person was trafficking a drug of dependence on a particular date/ or between dates charge). It is still open and usually necessary for the defence to put evidence to the Court to rebut the presumption (i.e. prove that an accused person was not trafficking drugs).