Ketamine Manufacturing / Production

The Section and the Act

Manufacturing, creating, or producing ketamine falls within the definition of “traffick” under section 70 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). It is prosecuted as trafficking, most commonly under:

• Section 71AC — Trafficking in a drug of dependence (applies where the quantity manufactured does not meet a commercial or large commercial threshold)
• Section 71AA / Section 71 — where the quantity manufactured meets or exceeds the commercial or large commercial quantity thresholds for ketamine (100.0 g / 750.0 g pure, as set out in Schedule Eleven)

Two related offences are also commonly charged alongside manufacturing allegations:

• Section 71C — Possession of a tablet press
• Section 71D — Possession of precursor chemicals

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

Maximum Penalty

• Manufacturing ketamine (base offence, s 71AC) — maximum level 4 imprisonment (15 years). There is no separate fixed fine specified for this offence.
• Manufacturing a commercial quantity (s 71AA) — maximum level 2 imprisonment (25 years)
• Manufacturing a large commercial quantity (s 71) — maximum level 1 imprisonment (life), with an additional fine of up to 5000 penalty units (currently $1,045,500)
• Possession of a tablet press (s 71C) — maximum 600 penalty units or level 6 imprisonment (5 years), or both
• Possession of precursor chemicals (s 71D) — maximum 600 penalty units or level 6 imprisonment (5 years), or both

Because manufacturing is charged as a form of trafficking, the same quantity-based escalation that applies to selling or supplying ketamine also applies here — the more that is manufactured, the higher the applicable maximum penalty.

Elements of the Offence

The prosecution must prove, beyond reasonable doubt:

1. The accused engaged in conduct amounting to manufacture, creation, or production of a substance — this is captured within the broad statutory definition of “traffick” in s 70, alongside preparing, selling, exchanging, or possessing for sale
2. The substance produced was a drug of dependence — here, that it was in fact ketamine
3. The accused acted without being authorised or licensed under the Act to do so
4. Where a commercial or large commercial quantity is alleged — that the accused intended to manufacture a quantity not less than the relevant threshold, a question of fact for the jury based on all the circumstances (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Mustica v The Queen (2011) 31 VR 367)

For the related tablet press and precursor chemical offences, the prosecution must prove possession of the item or substance, that it falls within the statutory description, and the absence of lawful authorisation.

Defences

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

• Authorisation or licence — that the accused held a lawful authority to manufacture, produce, or possess the relevant substances or equipment, for example in a licensed research or industrial setting
• Duress
• Factual dispute — challenging whether manufacturing conduct actually occurred, whether the substance produced was ketamine, or whether items found (such as equipment) were actually connected to manufacture
• Honest and reasonable mistake of belief
• Wrongful identification — disputing the accused’s connection to the manufacturing operation, particularly where multiple people had access to a property or premises
• Lack of intent — challenging whether the accused intended to manufacture the drug, as opposed to, for example, merely being present at a location where manufacturing equipment was found
• Mental impairment

Manufacturing cases often turn heavily on physical evidence located at a property — equipment, chemical residue, and documentation — and on establishing the connection (or lack of it) between the accused and that evidence.

Which Court Hears This Matter

• Base trafficking (manufacturing) under s 71AC may be heard summarily in the Magistrates’ Court in some circumstances, or on indictment in the County Court, depending on the value and complexity of the allegation and whether the accused elects or consents to summary jurisdiction.
• Commercial and large commercial quantity manufacturing (s 71AA and s 71) are indictable offences heard in the County Court, with the most serious matters potentially proceeding in the Supreme Court.
• Tablet press (s 71C) and precursor chemical (s 71D) possession are indictable offences, most commonly dealt with in the County Court, though they can sometimes be heard summarily depending on the circumstances.
• There is a presumption against bail for commercial and large commercial quantity charges.

SAC Statistics

SACStat records sentencing outcomes for trafficking in a non-commercial quantity of a drug of dependence (s 71AC) separately in the Magistrates’ Court and higher courts, though it does not isolate manufacturing-specific conduct or ketamine specifically within that broader category. Manufacturing-related equipment offences, including possession of a precursor chemical (s 71D) and possession of a tablet press (s 71C), also have their own SACStat entries in the higher courts. As with trafficking by sale, sentencing for manufacturing offences escalates with the quantity involved and the sophistication of the operation, and specific outcomes are best discussed directly with one of our lawyers by reference to comparable case summaries.

Frequently Asked Questions