Cocaine Trafficking

The Section and the Act

Cocaine trafficking is prosecuted under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Depending on the quantity involved, the charge will be laid under one of these three sections:

• Section 71AC – Trafficking in a drug of dependence (base offence, no quantity threshold)
• Section 71AA – Trafficking in a drug or drugs of dependence, commercial quantity
• Section 71 – Trafficking in a drug or drugs of dependence, large commercial quantity

Cocaine is a drug of dependence for the purposes of the Act because it is listed in Schedule Eleven, which is referenced by the definition of “drug of dependence” in section 4.

Maximum Penalty

The quantity of cocaine involved determines which threshold applies and, in turn, the maximum penalty:

• Under commercial quantity – base trafficking under s 71AC, maximum level 4 imprisonment (15 years)
• Commercial quantity – 250.0 g (pure) or 500.0 g (mixture) – s 71AA, maximum level 2 imprisonment (25 years)
• Large commercial quantity – 750.0 g (pure) or 1.0 kg (mixture) – s 71, maximum level 1 imprisonment (life), with an additional fine of up to 5000 penalty units.

These thresholds come directly from Schedule Eleven of the Act. Cocaine sits within a common band of thresholds shared by several other stimulant-type drugs (its large commercial quantity and mixture thresholds match, for example, ketamine’s), though its commercial quantity threshold (250g pure) is somewhat lower than that shared band.

Elements of the Offence

For any of the three trafficking charges, the prosecution must prove, beyond reasonable doubt:

1. The accused trafficked, or attempted to traffick, in a substance – “traffick” is defined in s 70 and includes preparing a drug for trafficking, manufacturing it, selling it, exchanging it, agreeing to sell it, offering it for sale, or possessing it for the purpose of sale.
2. The substance was a drug of dependence – here, that it was in fact cocaine, as defined in s 4 and Schedule Eleven.
3. The accused acted without being authorised or licensed under the Act to deal with the drug.
4. For s 71AA and s 71 specifically – that the accused intended to traffick in a quantity of cocaine that was not less than the commercial (or large commercial) quantity. It is not enough for the prosecution to prove the drug weighed the relevant amount; the accused must have known, or intended, that the quantity met that threshold. Whether that knowledge existed is a question of fact for the jury, based on all the surrounding circumstances

Defences

Depending on the facts, a number of defences may be available, including:

• Duress – that the accused was compelled to act under threat
• Factual dispute – challenging whether the substance was actually cocaine, whether it met the alleged quantity, or whether the accused’s conduct meets the statutory definition of “traffick”
• Honest and reasonable mistake of belief – for example, as to what the substance was, or the quantity involved
• Wrongful identification – disputing that the accused was the person responsible for the trafficking conduct
• Lack of intent – challenging whether the accused knew, or intended, that the quantity involved met the applicable threshold
• Mental impairment – that the accused was in such a mental condition at the time that they were not aware as to the nature of what they were doing or did not know that it was wrong.

Each of these defences depends upon specific facts of the case, and what evidences the prosecution can bring to prove intent and knowledge, which is often the most contested element in trafficking matters.

Which Court Hears This Matter

• Commercial quantity (s 71AA) matters are indictable and are heard in the County Court. They cannot be finalised in the Magistrates’ Court.
• Large commercial quantity (s 71) matters are also indictable, and while they are most often heard in the County Court, sufficiently serious matters may be heard in the Supreme Court.
• There is a presumption against bail for both charges, meaning an accused person will generally be remanded in custody unless they can show exceptional circumstances justifying release.

SAC Statistics

The Sentencing Advisory Council does not break trafficking sentencing statistics down by individual drug type, so the figures below reflect trafficking offences generally rather than cocaine specifically. They still give a useful indication of how these charges are typically dealt with by the higher courts.

Trafficking in a commercial quantity of drugs (s 71AA) – from 2018–19 to 2022–23, 243 people were sentenced for this as their principal offence in the higher courts. Of those, 233 (95.9%) received a prison sentence. Total effective sentences ranged from 53 days to 17 years and 10 months, with a median total effective sentence of 4 years and 9 months, and a median non-parole period of 3 years.

Trafficking in a large commercial quantity of drugs (s 71) – over the same period, 94 people received a principal sentence of imprisonment, all as non-aggregate prison terms. Imprisonment lengths ranged from 4 years to 15 years and 4 months, with a median principal imprisonment term of 9 years and 3 months. The average imprisonment length rose from 8 years and 1 month in 2018–19 to 10 years and 1 month in 2022–23. The Court of Appeal held in June 2017 that sentencing practices for both commercial and large commercial quantity trafficking needed to be uplifted, which is reflected in the rising average lengths across recent reporting periods.

Frequently Asked Questions