Sell or Supply a Commercial Quantity of Illicit Tobacco

If you have been charged with this offence, it is critical that you seek immediate legal advice from a criminal defence lawyer with experience in prosecutions of tobacco-related offences.

Police or Regulatory Interview

Before or after being charged, you may be contacted by:

• Victoria Police,
• Local council officers, or
• Inspectors authorised under the Tobacco Act.

You may be asked to:

• Participate in an interview and answer questions about your business or sales,
• Provide records (e.g., purchase or shipping documents),
• Allow inspection of your premises.

Important:

• You have the right to remain silent.
• You are not required to answer questions or provide documents.
• Do not attend an interview without a lawyer.

Providing incorrect or self-incriminating information could significantly harm your defence. A lawyer can speak on your behalf or attend with you.

Pleading Guilty

If you are charged with an offence and decide to plead guilty, your lawyer can assist by:

• Negotiating the agreed facts (such as the exact quantity and nature of the tobacco),
• Negotiating the charge,
• Preparing a plea in mitigation,
• Arguing for the lowest possible penalty.

In some cases, the charge may be negotiated to a lesser offence under section 11A(3), especially where the person has no prior history and the case involves minimal profit or commercial activity.

Pleading Not Guilty

You are entitled to plead not guilty if:

• You did not sell or supply the tobacco,
• You did not know the tobacco was illicit,
• The tobacco was not illicit,
• The amount in question was not a commercial quantity,
• There was a mistake, misunderstanding, or unlawful police conduct, or
• You were lawfully authorised to deal in that quantity.

Your lawyer will:

• Review the evidence against you,
• Assess whether proper procedures were followed in the investigation,
• Identify weaknesses in their case and, where appropriate, seek that the charges be dropped, and
• Develop a strategy for trial or contested hearing.

Examples of Offending Under Section 11A(4)

This offence typically arises in situations involving:

• The sale of large quantities of chop-chop tobacco to individuals or businesses,
• Wholesale or black-market distribution of unbranded or counterfeit cigarettes,
• Sale or delivery of illicit tobacco through online platforms or social media,
• Commercial importation of untaxed tobacco for on-selling, or
• Supply of tobacco without a licence in bulk quantities (e.g. >5kg or >1,000 sticks).

Even a single sale or supply transaction may lead to a section 11A(4) charge if the quantity involved meets or exceeds the commercial threshold.

Legislation

The offence is created by:

Section 11A(4) of the Tobacco Act 1987 (Vic), which states:

This provision captures both individuals and businesses, whether licensed or unlicensed, and targets conduct involving significant volumes of illicit tobacco.

Which Court Will the Case Be Heard In?

Charges under section 11A(4) may be heard in the Magistrates’ or County Courts of Victoria, depending on the facts. Your case may be heard in the County Court if it is a complex or high-value matter, or if it is being prosecuted alongside Commonwealth offences, such as tax or customs breaches.

Elements of the Offence

To prove the offence under section 11A(4), the prosecution must establish beyond reasonable doubt:

1. That the accused sold or supplied a commercial quantity of illicit tobacco;
2. The accused did so intentionally or recklessly.

Each of these elements must be satisfied for a conviction to be recorded.

The Statutory Provisions for Selling or Supplying Commercial Quantities

This offence is governed by:

• Section 11A(4) of the Tobacco Act 1987 (Vic);
• With relevant definitions provided in the Tobacco Regulations 2017 (Vic).

The term “commercial quantity” is defined in the regulations as:

• 50 (or more) grams of loose tobacco; or
• 50 or more cigarettes.

In a Trial Under Section 11A(4), the Court Will Consider:

• Did the accused sell or supply the illicit tobacco?
• Was it a commercial quantity of illicit tobacco?
• Did the accused sell the tobacco intentionally or recklessly?
• Did the accused have lawful authorisation to sell or supply that amount?
• Was the accused aware, or should they have been aware, that the tobacco was illicit?

The prosecution must prove each element to the criminal standard.

Maximum Penalty for Section 11A(4) of the Tobacco Act 1987 (Vic)

The maximum penalties are significant:

• For individuals, 15 years’ imprisonment or 1,800 penalty units (approx. $366,318 as at 2025),
• For corporations, 9,000 penalty units (approx. $1,831,590 as at 2025),
• Additional consequences may include:
  
  • Forfeiture of seized tobacco,
  • Cancellation of tobacco sales licences,
  • Regulatory referrals to the ATO or federal agencies.

In cases involving aggravating circumstances (such as large-scale distribution or cross-border smuggling), more serious criminal charges may follow.

Sentencing

The court will take into account:

• The quantity of tobacco involved,
• Aggravating factors, such as commercial profit or repeat offending,
• The profit motive, if any,
• The presence of prior offences,
• Cooperation with authorities.

Standard Sentences

Sentencing outcomes may include:

• Fines (with or without conviction),
• Adjourned undertakings (e.g., good behaviour bonds),
• Community Correction Orders,
• Forfeiture of tobacco stock or delivery equipment,
• In serious or repeat matters, imprisonment may be considered, especially where charges overlap with other criminal conduct.

Possible Defences

Common defences include:

• No sale or supply occurred;
• Quantity below commercial threshold;
• Not illicit: The tobacco did not meet the definition of ‘illicit’.
• Lack of knowledge – you did not know the tobacco was illicit or being sold;
• Duress or coercion;
• Illegal search or seizure – where authorities obtained evidence unlawfully;
• Mistaken identity: You were not involved in the sale or supply.

A criminal lawyer will assess which defences may apply to your situation and challenge the prosecution’s case accordingly.