Ecstasy / MDMA / MDA Trafficking

The Section and the Act

Ecstasy (MDMA), MDA, and other related substances containing methylenedioxyamphetamine are regulated and prosecuted under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The applicable trafficking offence depends on the quantity of the drug involved.

• Section 71AC – Trafficking in a drug of dependence, where no minimum quantity threshold applies, where no minimum quantity threshold applies.
• Section 71AA – Trafficking in a drug or drugs of dependence in a commercial quantity.

• Section 71 – Trafficking in a drug or drugs of dependence in a large commercial quantity.

MDMA and MDA are classified as drugs of dependence under the Act. Therefore, the relevant trafficking provision will depend primarily on the quantity involved and the circumstances of the offence.

Maximum Penalty

The applicable penalty depends on the quantity of MDMA or MDA involved. The relevant thresholds and maximum penalties are:

• Below commercial quantity: Section 71AC applies, with a maximum penalty of level 4 imprisonment (15 years)

• Commercial quantity: For 100.0 g (pure) or 500.0 g (mixture), section 71AA applies, with a maximum penalty of level 2 imprisonment (25 years)
• Large commercial quantity: For 750.0 g (pure) or 1.0 kg (mixture), section 71 applies. The maximum penalty is level 1 imprisonment (life) together with an additional fine of up to 5000 penalty units.

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: Under Section 70, ‘trafficking’ has a broad meaning and may include preparing a drug for sale, manufacturing it, selling or exchanging it, offering it for sale, or possessing it with the intention of selling it.
2. The substance was a drug of dependence: In this case, the substance must be MDMA, MDA, or another relevant methylenedioxyamphetamine listed as a drug of dependence under the Act.
3. The accused acted without being authorised or licensed: The prosecution must establish that the accused was not authroised or licensed under the under the Act to engage in the conduct concerned.
4. For s 71AA and s 71 specifically: For offences under sections 71AA and 71, the prosecution must prove that the accused intended to traffic a quantity that was at least the relevant commercial or large commercial quantity.

It is not sufficient to show that the drugs happened to weigh the required amount. The prosecution must establish that the accused knew, or intended, that the quantity involved met the relevant threshold.

Defences

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

• Duress – the accused was forced to commit the offence because of threats or coercion.
• Factual dispute – the accused disputes the substance, quantity, or whether their conduct amounted to trafficking.
• Honest and reasonable mistake of belief – the accused genuinely and reasonably misunderstood a relevant fact, such as the substance or its quantity.
• Wrongful identification – the accused denies being the person responsible for the trafficking conduct.
• Lack of intent – the accused did not know or intent that the quantity involved met the required threshold.
• Mental impairment – the accused’s mental state may affect their criminal responsibility for the alleged offence.

Given that ecstasy is often distributed and found in tablet form in bulk quantities (particularly at festivals or through online sales), factual disputes over total weight, purity, and whether tablets found together were genuinely intended for supply as opposed to shared personal use among a group can be significant in these 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.
• Base Trafficking (s 71AC), where the quantity involved is below commercial quantity, this charge is triable either way: it is most commonly heard summarily in the Magistrates’ Court, though the prosecution may elect to proceed on indictment in the County Court in more serious cases.
• 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

Traffick ecstasy (s 71AC) – Magistrates’ Court

This is the one category where SACstat reports ecstasy-specific figures. In the three years to 30 June 2023, 232 charges of traffick ecstasy were sentenced in the Magistrates’ Court, with the most common sentence being a community correction order (39.7% or 92 charges). Looking at cases rather than individual charges, 218 cases in that period included at least one charge of traffick ectsacy, involving 193 men and 25 women, with the most common case-level outcome again being a community correction order (38.5%, or 84 cases)

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.

Frequently Asked Questions