LSD Trafficking

The Section and the Act

LSD (Lysergic Acid Diethylamide) 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 the three sections listed below:

• 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

LSD 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 LSD involved determines which threshold applies and, in turn, the maximum penalty:

• Under 50.0 mg (pure) – base trafficking under s 71AC, maximum level 4 imprisonment (15 years)
• Commercial quantity – 50.0 mg (pure) – s 71AA, maximum level 2 imprisonment (25 years)
• Large commercial quantity – 150.0 mg (pure) – s 71, maximum level 1 imprisonment (life), with an additional fine of up to 5000 penalty units.

These thresholds can be found in Schedule Eleven. LSD’s numbers look tiny when compared with drugs like ketamine, cocaine or methamphetamine but that is simply because LSD is active in milligram doses rather than grams. The law isn’t treating LSD any more or less seriously by setting a lower weight; it is just accounting for how potent the drug actually is.

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 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 LSD, 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 LSD that was not less than the commercial (or large commercial) quantity. Victorian courts have confirmed that it is not enough for the prosecution to simply 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 (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300)

Defences

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

• Duress – arguing the accused only engaged in the conduct because they were threatened with serious harm and had no reasonable way to avoid it other than by complying.
• Factual dispute – arguing the substance wasn’t actually LSD, that the quantity alleged hasn’t been proven, or that what the accused did doesn’t actually satisfy the legal definition of ‘traffick’
• Honest and reasonable mistake of belief – arguing the accused genuinely and reasonably misunderstood either what the substance was or how much of it was involved.
• Wrongful identification – arguing that police have identified the wrong person as being responsible for the trafficking conduct
• Lack of intent – arguing the accused didn’t know, and didn’t mean, for the quantity involved to reach the threshold that triggers the higher charge.
• Mental impairment – arguing that a mental health condition at the time meant the accused didn’t understand the nature of what they were doing or didn’t know it was wrong.
• Authorisation or licence – arguing the accused was in fact legally authorised to deal with the substance, which arises only rarely, but can be relevant in contexts like clinical research.

Each of these turns heavily on the specific facts of the case, and what evidence 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 LSD 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