Possession of Substance etc for Trafficking in a Drug of Dependence

Police Interview

The police will interview you if they think you have possessed a substance for the purpose of trafficking a drug of dependence. It is important to remember you are not obliged to give a comment interview to police. If you are unsure on how to approach an upcoming police interview for this charge, then you should contact a lawyer. We help our clients navigate police interviews regularly and can assist you if you are in need of advice.

Pleading Not Guilty

If you intend to plead not guilty, you should engage a lawyer to help you work through your case. We regularly deal with drug offences and our expert lawyers will work through the charge, the evidence and assist you in establishing whether the prosecution have met the definition of the charge.

Pleading Guilty

If you are pleading guilty to this charge you are at risk of being sentenced to a term of imprisonment. You want to put your best case forward at Court. Our expert criminal lawyers can help you prepare for court, advise you on what documentation to obtain and will put together a plea for you. You do not need to do this alone and we are available to help where you need it.

Sentencing

Sentencing in the higher courts of VictoriaSentencing in the Magistrates’ Courts of Victoria

Which court will the case be heard in?

It is a serious offence that is often heard in the County Court when a person is charged with a variety of drug charges.

Examples of Possession of Substance etc for Trafficking in a Drug of Dependence

• You decide to buy a 10 grams of cocaine to deal at a party. The police search you on your way to the party, and discover several ‘deal bags’ and scales.
• You are growing marijuana in a little greenhouse on your patio. You intend to sell the marijuana to your friends.
• You own a house and decide to run a meth lab in your garage. In the garage, you have propane tanks, cold and flu tablets containing pseudoephedrine, glass cookware and other equipment.

What is the legal definition of Possession of Substance etc for Trafficking in a Drug of Dependence?

A person who, without being authorised by or licensed under the Drugs, Poisons and Controlled Substances Act 1981 or the regulations or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act to do so, possesses a substance, material, document containing instructions relating to the preparation, cultivation or trafficking of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

Legislation

The legislation for this offence can be found on section 71A of Drugs, Poisons and Controlled Substances Act 1981.

Elements of the offence

To prove this charge, Prosecution must prove the following beyond reasonable doubt:

1. The accused possessed a substance, material, documents or equipment…
2. Relating to preparation, cultivation or manufacture of a drug of dependence…
3. With the intention of using them for the purpose of trafficking in a drug of dependence…
4. Without being authorised by or license under an Act.

1. Was the accused actually in possession?
Possession is defined in Section 5 of the Drugs, Poisons and Controlled Substances Act 1981. Without restricting the meaning of the word possession, it states that ‘any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.’

For further clarification, we can look to the common law definition of possession. Common law possession involves the physical control with an intent to possess.

Conduct element: This requires the Prosecution to prove that the accused had physical custody or control over the substance.¹ A person does not need to be carrying the substance on their person to satisfy this element. They do however have to have custody or control over it. Once a person has possession of an item, that possession remains alive until the item possessed is disposed of. This is said to be in their custody and within their control.²

Mental element: In most cases it will be necessary to infer the requisite intention from the performance of the proscribed act and the circumstances in which it was performed.³

“Can they prove you actually possessed the substance?”

2. Did the material relating to the preparation, cultivation or manufacture of a drug of dependence?
This charge is concerned with trafficking, not possession. Therefore, a glass pipe used for smoking meth would probably not be relating to the ‘preparation, cultivation or manufacture’ of a drug of dependence. However, a pill-pressing machine obviously would.

3. Was there an intention to use the material for the purpose of trafficking?
There needs to be an intention to use the material for the purpose of trafficking a drug of dependence. Again, a glass pipe would ordinarily be used for personal use, not trafficking. The prosecution would be able to show that it is drug paraphernalia, but would struggle to show that the accused intended to possess the drug paraphernalia for the purpose of trafficking.

4. Was the accused authorised to possess the material?
The accused may be authorised to possess the material – for instance, they may be a doctor authorised to prepare marijuana for sale for medicinal purposes.

Defences

Defences to this can be related to the issue of intention. What did you intend to possess? Did you intend to possess this substance etc. for trafficking? As with any possession charges, there are often disputes about what was possessed by the accused.

Questions in cases like this

• Did you actually possess the substance or material or equipment?
• Did you intend to use the substance for the purpose of trafficking a drug of dependence?

Maximum penalty for section 71A of the Drugs, Poisons and Controlled Substances Act 1981

The charge of Possession of Substance etc for Trafficking in a Drug of Dependence (s71A of the Drugs, Poisons and Controlled Substances Act 1981) may lead to a level 5 imprisonment (10 years maximum) on a finding of guilt.

Other important resources

• SACStat Higher Courts – Drugs, Poisons And Controlled Substances Act 1981 (Vic) : s 71A – possess equipment, material or substance to manufacture a drug of dependence
• SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic) : s 71A – possession of materials for trafficking in a drug of dependence

_{[1] He Kaw Teh v R (1985) 157 CLR 523.
[2] R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120.
[3] Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43; R v Page [2008] VSCA 54).}