Ketamine Trafficking

The Section and the Act

The manner in which Ketamine trafficking charge is framed under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) comes down to quantity. Three provisions can apply, depending on how much was involved:

• 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

Ketamine 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

Quantity is the driving factor for everything here, both which section applies and what penalty follows:

• Below the commercial threshold, the base offence under s 71AC carries a maximum of level 4 imprisonment (15 years)
• At commercial quantity – 100.0 g (pure) or 500.0 g (mixture) – s 71AA carries a maximum of level 2 imprisonment (25 years)
• At large commercial quantity – 750.0 g (pure) or 1.0 kg (mixture) – s 71 carries the maximum available under the Act: level 1 imprisonment (life), with an additional fine of up to 5000 penalty units.

All of these thresholds come directly from Schedule Eleven of the Act. Since, ketamine is far less potent by weight than a drug like LSD, its thresholds sit in the grams and kilograms range rather than milligrams, this is the reflection of potency of this.

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” has a wide statutory meaning and has been 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 – specifically, that it was ketamine, 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. This element carries particular relevance for ketamine, which has legitimate veterinary and medical (anaesthetic) uses, meaning authorisation or licensing defences can arise more often here than with purely recreational drugs like LSD.
4. For s 71AA and s 71 specifically – that the accused had the intention to traffick in a quantity of ketamine 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.

Defences

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

• Authorisation or licence — arguing that the accused was lawfully permitted to possess or supply the ketamine, for example in a veterinary or medical arrangement.
• Duress – arguing that the accused was compelled to act under threat
• Factual dispute – challenging whether the substance was actually ketamine, whether it met the alleged quantity, or whether the accused’s conduct meets the statutory definition of “traffick”
• Honest and reasonable mistake of belief – arguing a genuine, reasonable misunderstanding as to the substances’ identity or the quantity involved.
• Wrongful identification – arguing police have charged the wrong person
• Lack of intent – challenging whether the accused knew, or intended, that the quantity involved met the applicable threshold
• Mental impairment – arguing that a mental health condition present at the time meant the accused didn’t understand the nature of what they were doing, or didn’t appreciate that it was wrong.

Each of these depends on the individual facts of the case, and what prosecution can actually establish about 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 ketamine 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.

Frequently Asked Questions