Trafficking in a Drug of Dependence - Commercial Quantity

In Victoria, the maximum penalty for Trafficking or Attempting to Traffick in a Drug of Dependence – Commercial Quantity is 25 years’ imprisonment.

The Offence of Trafficking In A Drug of Dependence – Commercial Quantity

The offence of Trafficking in a Drug of Dependence – Commercial Quantity is contained in section 71AA of the Drugs, Poisons and Controlled Substances Act 1981 which states:

‘A person who, without being authorised by or licenced under this Act or the regulations or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act to do so, trafficks or attempts to traffick in a quantity of a drug of dependence or of two or more drugs of dependence that is not less than the commercial quantity applicable to that drug of dependence or those drugs of dependence is guilty of an indictable offence’

What is a Drug of Dependence?

A ‘drug of dependence’ is listed in Schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981. The definition includes any form of drug listed in the Schedule, as well as the salts, analogues, derivatives and isomers of that drug. In addition, a drug in the same class as one listed in the Schedule or contained in or mixed with another substance would also be considered a drug of dependence under section 73.

What is Trafficking?

Under section 70 of the Drugs, Poisons and Controlled Substances Act 1981, ‘traffick’ in relation to a drug of dependence includes:

• 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.

This definition is not a complete list of all the actions that could amount to trafficking. The Courts have also defined trafficking to mean:

• An activity performed in a commercial setting where it can be fairly inferred someone (not necessarily you) made a profit; or
• That you participated in the progress of drugs from its source to the consumer.

What is a commercial quantity?

Under section 70 of the Drugs, Poisons and Controlled Substances Act 1981, a ‘Commercial Quantity’ of a drug of dependence is specified in Schedule 11 of the Act.

The Commercial Quantities for some of the more common drugs of dependence are set out in the table below:

What Actions Might Constitute Trafficking in a Drug of Dependence – Commercial Quantity?

• Carrying a commercial quantity of cocaine in your suitcase on board a flight from Colombia to Melbourne;
• Having a commercial quantity of MDMA manufactured in a warehouse that you own;
• Selling a commercial quantity of cannabis to a friend.

What the Police Must Prove

To convict you of Trafficking in a Drug of Dependence – Commercial Quantity, the prosecution must prove each of the following elements beyond a reasonable doubt:

• You intentionally ‘trafficked’ or ‘attempted to traffick’ in a particular substance; and
• That the substance was a drug of dependence; and
• That the substance that was a drug of dependence was of a Commercial Quantity.

Possible Defences for Trafficking in a Drug of Dependence – Commercial Quantity

Possible defences for Trafficking in a Drug of Dependence – Commercial Quantity are:

• You are licenced to manufacture, sell or distribute the drug under the Access to Medicinal Cannabis Act 2016;
• Factual dispute/lack of intent; or
• Duress.

Which Court Will Hear Your Matter?

The matter is an indictable offence only, meaning that it must be heard in the County Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.