Heroin Trafficking

The Section and the Act

Heroin trafficking in Victoria is prosecuted under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The applicable charge depends on the quantity of heroin involved. Three provisions can apply:

• 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

Heroin 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 heroin involved determines which provision applies and the maximum penalty that follows:

• Below commercial quantity — base trafficking under s 71AC, maximum level 4 imprisonment (15 years)
• Commercial quantity — 50.0 g pure or 250.0 g in a mixture — s 71AA, maximum level 2 imprisonment (25 years)
• Large commercial quantity — 250.0 g pure or 750.0 g in a mixture — s 71, maximum level 1 imprisonment (life), with an additional fine of up to 5,000 penalty units

These thresholds come directly from Schedule Eleven of the Act. Heroin’s thresholds are considerably lower than those for drugs like steroids or cannabis, reflecting the potency of the drug and the harm associated with its supply at quantity.

Elements of the Offence

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

1. The accused trafficked, or attempted to traffick, in a substance. “Traffick” is defined broadly in section 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 heroin, as defined in section 4 and Schedule Eleven.
3. The accused acted without being authorised or licensed under the Act to deal with the drug.
4. For section 71AA and section 71 specifically — that the accused intended to traffick in a quantity of heroin 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 a genuine threat, leaving no reasonable alternative
• Factual dispute — challenging whether the substance was actually heroin, 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 did not understand the nature of what they were doing or did not know it was wrong

Given the close connection between heroin dependency and offending that is often present in these matters, the circumstances surrounding how a person came to be involved can also be relevant both to certain defences and to sentencing.

Which Court Hears This Matter

Commercial quantity matters under section 71AA are indictable offences heard in the County Court. They cannot be finalised in the Magistrates’ Court. Large commercial quantity matters under section 71 are also indictable and are most often heard in the County Court, though the most serious matters may proceed in the Supreme Court. Base trafficking under section 71AC may in some circumstances be dealt with summarily in the Magistrates’ Court, depending on the nature of the allegation and whether the accused elects or consents to summary jurisdiction.

There is a presumption against bail for both commercial and large commercial quantity 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 heroin 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. Average imprisonment lengths rose from 8 years and 1 month in 2018-19 to 10 years and 1 month in 2022-23.

Frequently Asked Questions