Penalty for Drug Trafficking

In Victoria, drug trafficking is considered a serious offence and carries a maximum penalty of 15 years imprisonment where the quantity of the drugs is less than the threshold for a commercial quantity or a large commercial quantity. The specific quantities of each different drug that can trigger the commercial or large commercial quantity thresholds are listed in the schedule of the DPCS act 1981. Most cases of trafficking involve quantities much smaller than these thresholds, and the actual penalty imposed may vary depending on the specific circumstances of the case.

What are the circumstances that affect sentencing of drug trafficking?

The quantity of drugs found can be a relevant factor as can be the circumstances by which the trafficking occurred. The narrative is incredibly important in these cases.

The life story of the accused and how their life has been interrupted by the drug scene can be particularly relevant if there is medical documentation to demonstrate mental health issues and addiction.

How is drug trafficking alleged?

Charges of drug trafficking tend to proceed in two main ways. Trafficking can be inferred by establishing that an accused has sold drugs to another person, or by proving that an accused is in possession of a trafficable quantity of a drug of dependence.

The table below lists some common drugs of dependence, and the trafficable quantity of each drug where by proof of possession is deemed, in the absence of other evidence, to be evidence of trafficking.

Are there any defences to trafficking?

Deemed trafficking relies on deemed possession in which drugs can be found to be possessed constructively through property that owned by the by the accused. For example, the trafficable quantity of drugs may been in a car or a home owned by the accused. This form of drug possession is allowed as a consequence of the deeming provisions of section 5 of the Drugs Poisons and Controlled Substances Act 1981.

Nonetheless, Deeming is a rebuttable presumption which means that evidence which shows other people had access to the house or car owned by the accused or other relevant circumstances may in certain circumstances negate the deeming provision.

Possession can only be proved if the prosecution can demonstrate that the accused knew about the existence of the drugs. This can include actual knowledge or in some circumstances being reckless to conditions where it must have been inferred by a reasonable person that drugs existed.

The accused will only be found to have committed the offence if they have some level of control or authority over the drug, whether it’s physical control or the ability to direct others on what to do with the drugs.

What is the difference between cultivation and drug trafficking?

There are quite a few differences between cultivation and drug trafficking. The most important distinction is that drug trafficking involves the sale of drugs, where as drug cultivation merely involves growing plants that are listed as drugs of dependence.

Is it trafficking if an accused is alleged to hold drugs for someone else?

There are cases like  R v Liberti (1991) 55 A Crim R 120 which suggest that temporary possession where the accused intends to return the drug to the person who is the true owner or who had given it to the accused to hold does not amount to trafficking. Although such possession is still a criminal offence.