This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Trafficking in a Drug of Dependence
In Victoria, the maximum penalty for trafficking or attempting to traffick in a drug of dependence is 15 years’ imprisonment. If the trafficking or attempt to traffick occurred at a school or within 500 metres of a school, the maximum penalty is 20 years’ imprisonment.
The Offence of Trafficking in a Drug of Dependence
The offence of trafficking in a drug of dependence is contained in section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 which states:
A person who, without being authorised 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 drug 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, exchange, 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 acts 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 Actions Might Constitute Trafficking in a Drug of Dependence?
A person may be charged with this offence based on allegations that they:
- Carried cocaine in their suitcase on board a flight from Colombia to Melbourne;
- Having a traffickable quantity of MDMA in your handbag;
- Selling cannabis to their friends.
What the Police Must Prove
To convict a person of trafficking in a drug of dependence, the prosecution must prove each of the following elements beyond a reasonable doubt:
- They intentionally ‘trafficked’ or ‘attempted to traffick’ in a particular substance; and
- That substance was a drug of dependence.
Possible Defence
A person can defend a charge of trafficking in a drug of dependence on the basis that they are licenced to manufacture, sell or distribute the drug under the Access to Medicinal Cannabis Act 2016;
Which Court Will Hear Your Matter?
Depending on the quantity of the drug of dependence that is alleged to have been trafficked or attempted to traffick, this charge may be heard in either the Magistrates’ Court of Victoria or the County Court of Victoria. An accused can elect to have their matter heard in the County Court of Victoria regardless of the alleged quantity.
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