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Possession of Substance etc for Trafficking in a Drug of Dependence

– section 71A of the Drugs, Poisons and Controlled Substances Act 1981

Laboratory InstrumentsA person is guilty of an offence if they are in possession of 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 it for the purpose of trafficking in a drug of dependence.This is a very serious offence which is punishable by 10 years imprisonment. If you are charged with this offence, it is very important you contact a defence lawyer.

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.
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 dependance?
What are some of the possible defences to Possession of Substance etc for Trafficking in a Drug of Dependence?

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.

Maximum penalty and court that deals with this charge

This charge may lead to a level 5 imprisonment (10 years maximum) on a finding of guilt. It is a serious offence that is often heard in the County Court when a person is charged with a variety of drug charges.

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.

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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 authorized 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 dependance?
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 dependance. 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.

Sentencing in the higher courts

High CourtThere were 40 cases (80 charges) of Possess Equipment, Material or Substance to Manufacture a Drug of Dependence that were heard in Victorian higher courts from 1 July 2011 to 30 June 2016. Majority of these cases resulted in imprisonment (47.5%) but other sentences were also imposed such as wholly suspended sentence (27.5%), Community Correction Order (15%), partially suspended sentence (7.5%), and adjourned undertaking/discharge/dismissal (2.5%).

Of those who were sent to prison, 5.3% received the longest period of imprisonment which is somewhere between 8 and 9 years. The most frequently imposed prison term was between 1 and 2 years and was applied in 47.4% of the cases that led to imprisonment.4

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.5

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, 142 cases (148 charges) of Possession of Materials for Trafficking in a Drug of Dependence were heard from 1 July 2013 to 30 June 2016. Most of the cases also resulted in imprisonment (40.1%) but other penalties were also handed down. These penalties include Community Correction Order (33.8%), wholly suspended sentence (13.4%), fine (7.8%), other (4.2%), and adjourned undertaking/discharge/dismissal (0.7%).

The most frequently imposed prison term was between 3 and 6 months (33.3%) while the longest was for 36+ months (3.5%). For the fines, the majority fell under the “$2,000 < $3,000” category which was also the category with the highest amount imposed (38.5% for aggregate and 7.7% for non-aggregate).6

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.7

Other important resources
Media information

 



[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).
[4] SACStat Higher Courts – Drugs, Poisons And Controlled Substances Act 1981 (Vic) : s 71A – possess equipment, material or substance to manufacture a drug of dependence < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_9719_71A.html >
[5] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
[6] SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic) : s 71A – possession of materials for trafficking in a drug of dependence < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71A.html >
[7] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >