Possess Commercial Quantity of Illicit Tobacco

Police Interview

If you are contacted by Victoria Police regarding breaches of the Tobacco Act, you may be asked to participate in an interview about your alleged possession of illicit tobacco.

Before giving a statement or agreeing to an interview, you should seek legal advice. Our lawyers can make sure you are prepared for an interview and know what your rights are.

If you are a business owner or operator, speaking without a lawyer present can jeopardise not only your legal position but also the future of your business licence and operations.

Pleading Not Guilty

If you believe the charge is incorrect or overstated, you may plead not guilty.

Your legal team can:

• Analyse whether the tobacco meets the legal definition of a “commercial quantity”.
• Challenge whether you were carrying on a tobacco supply business.
• Assess the lawfulness of any search, seizure, or evidence collection.
• Represent you at a contested hearing.

Some charges may be withdrawn or downgraded depending on the evidence and legal arguments available.

Pleading Guilty

If the evidence against you is strong and you decide to plead guilty, your matter will proceed to a sentencing hearing. Pleading guilty early may result in a more lenient penalty.

A lawyer will assist by:

• Negotiating the facts underlying the charge (e.g. quantity of tobacco, your role in the business).
• Presenting evidence of mitigating factors, such as financial hardship, cooperation with authorities, or limited involvement.
• Arguing for a minimal penalty, such as a fine without conviction, where appropriate.

Examples of Offending Under Section 11A(2)

Situations that may lead to a charge under s 11A(2) include:

• A shopkeeper storing more than 50 grams of unbranded or counterfeit tobacco for resale.
• A warehouse operator keeping imported tobacco not marked with Australian health warnings.
• Having access to or control over a commercial stockpile of untaxed tobacco.

Even if the tobacco is not for sale at the time of discovery, mere possession of a commercial quantity by a person in a tobacco supply business may trigger the offence.

Legislation

Possess a commercial quantity of illicit tobacco is found under section 11A(2) of the Tobacco Act 1987 (Vic).

Which Court Will the Case Be Heard in?

Offences under section 11A(2) are indictable offences that can be heard summarily in the Magistrates’ Court. Depending on the volume of tobacco, the scale of the business, and the existence of related charges (such as fraud or smuggling), the matter may escalate in seriousness.

Elements of the Offence

To prove a charge under section 11A(2), the prosecution must establish:

1. That the accused carried on a tobacco supply business;
2. That the accused possessed or controlled a commercial quantity of illicit tobacco products;
3. The accused knew, or should have known that the tobacco was illicit.

The prosecution must prove each element beyond reasonable doubt to secure a conviction.

The Statutory Provisions for Possess Commercial Quantity of Illicit Tobacco

The offence is governed by:

• Sections 3 and 11A(2) of the Tobacco Act 1987 (Vic);
• With definitions provided in the Tobacco Regulations 2017 (Vic) and other subordinate legislation.

The law defines:

• What constitutes a “commercial quantity” (50 grams or more of loose tobacco, or 50 or more cigarette sticks).
• What is considered a “tobacco supply business”.

Questions in Cases Like This

• Was the accused involved in tobacco supply business at the time?
• Can the prosecution prove possession of the tobacco?
• Was the accused aware, or should they have been aware, of the illicit nature of the tobacco in their possession?

Possible Defences

Possible legal defences to a charge under section 11A(2) include:

• No possession: You did not have custody or control over the tobacco.
• Not commercial quantity: The illicit tobacco in question does not meet the legal definition of “commercial quantity”.
• Lack of knowledge: You were unaware of the presence or nature of the tobacco.

A criminal defence lawyer can evaluate the best defence based on the unique facts of your case.

Maximum Penalty for Section 11A(2) of the Tobacco Act 1987 (Vic)

The maximum penalties for this offence are severe and reflect the seriousness of dealing in commercial quantities of illicit tobacco:

• 840 penalty units for an individual ($170,948.40 as at 2025), or up to 5 years’ imprisonment
• 4,200 penalty units for a body corporate ($854,742),
• In some cases, businesses may face enforcement action, including licence cancellation or seizure of goods.

These penalties are significantly higher than those for possession of non-commercial quantities under section 11A(1).