Trafficking in a Drug of Dependence

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

Drug Trafficking
‘Trafficking in a Drug of Dependence’ is an offence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (the Act).

Examples of Trafficking in a Drug of Dependence
  • You think you are being a good mate, and you bulk buy 20 pingers from your dealer to sell to your friends at an upcoming festival. You are caught entering the festival with 20 pills.
Questions in cases like this
  • Is there evidence that you are trafficking, such as text messages or large amounts of cash?
  • Can the police show that you were in possession of the drugs?
  • Are the items actually drugs of dependence?
Possible Defences

Defences to this charge can be:

  • Duress
  • Factual disputes
  • Honest and reasonable mistake
  • Wrongful identification
  • Lack of intent
  • Mental impairment
Maximum penalty and court that deals with this charge

The maximum penalty for this offence is level 4 imprisonment (15 years maximum). Trafficking in a drug of dependence is an indictable offence but it can be heard summarily.

What is the legal definition of Trafficking in a Drug of Dependence?

Subject to subsection (2), a person who, without being authorized by or licensed under this Act or the regulations, the Access to Medicinal Cannabis Act 2016 or the regulations under that Act or the Voluntary Assisted Dying Act 2017 or the regulations under that Act to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence.

Legislation

It is a criminal offence to traffick in a drug of dependence based on section 71AC of the Drugs, Poisons and Controlled Substances Act 1981.

Elements of the Offence

To prove this offence the Prosecution must show that the accused intentionally trafficked or attempted to traffick in a drug of dependence.

The law surrounding this simple proposition can be very complex. As an example, a person can be found guilty of trafficking even though they did not know the substance being trafficked was a drug of dependence. It is also the sort of charge where a person who has brought an amount to share amongst their friends can be found guilty even when there was no intention to profit from the transaction.

Given the complexity of drug law you should ring us and discuss your case if you have been charged.
 

“Can they prove you were trafficking?”

 

Sentencing in the higher courts

From 1 July 2013 to 30 June 2018, there were 311 cases (772 charges) of Trafficking in a Non-Commercial Quantity of Drug of Dependence that were heard in the higher courts of Victoria. Majority of these cases resulted in Imprisonment (73%) and Community Correction Order (16.7%). Other penalties imposed include:

  • Partially Suspended Sentence – 4.5%
  • Wholly Suspended Sentence – 3.9%
  • Youth Justice Centre Order – 0.6%
  • Fine – 0.6%
  • Adjourned Undertaking/Discharge/Dismissal – 0.6%

Of the cases that led to imprisonment, majority were sentenced to a term that was between 2 and 3 years (23.8% of the cases that resulted in imprisoment). The longest prison term imposed was between 8 and 9 years but this was true for oly 0.4% of the cases that led to prison terms.

Of the cases that led to Community Correction Orders, majority were sentenced to CCO terms that were between 1 and 2 years (34.6% of those that led to CCOs). The longest CCO term was more than 5 years but this was least imposed at only 1.9%.1

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.2
Magistrates' Court

Sentencing in the Magistrates’ Courts

In the Victorian Magistrates’ Courts, different sentences were imposed for various forms of Trafficking in a Non-Commercial Quantity of Drug of Dependence from 1 July 2013 to 30 June 2016.

Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Traffic GHB
Number of Cases: 155 (156 charges)

  • Community Correction Order – 51.6 %
  • Imprisonment – 26.5 %
  • Other – 5.8 %
  • Fine – 5.2 %
  • Wholly Suspended Sentence – 4.5 %
  • Partially Suspended Sentence – 3.9 %
  • Adjourned Undertaking/Discharge/Dismissal – 1.9 %
  • Youth Justice Centre Order – 0.7 %
Most Commonly Imposed CCO Term: 12 < 18 months (57.1% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (1.2%, non-aggregate)
Most Commonly Imposed Prison Term: 6 < 12 months (34.2% of those who received prison terms)
Longest Prison Term: 36+ months (2.4%)3

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Amphetamines
Number of Cases: 304 (316 charges)

  • Community Correction Order – 41.1 %
  • Imprisonment – 32.6 %
  • Wholly Suspended Sentence – 7.9 %
  • Fine – 7.2 %
  • Partially Suspended Sentence – 5.3 %
  • Adjourned Undertaking/Discharge/Dismissal – 3.3 %
  • Other – 2.3 %
  • Youth Justice Centre Order – 0.3 %
Most Commonly Imposed CCO Term: 12 < 18 months (58.3% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (8.6%, non-aggregate)
Most Commonly Imposed Prison Term: 3 < 6 months (31.3% of those who received prison terms)
Longest Prison Term: 36+ months (2.0%)4

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Cannabis
Number of Cases: 1,143 (1,186 charges)

  • Community Correction Order – 47.9 %
  • Imprisonment – 21.3 %
  • Fine – 11.8 %
  • Wholly Suspended Sentence – 10.2 %
  • Adjourned Undertaking/Discharge/Dismissal – 6.0 %
  • Partially Suspended Sentence – 2.3 %
  • Other – 0.4 %
  • Youth Justice Centre Order – 0.3 %
Most Commonly Imposed CCO Term: 12 < 18 months (49.4% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (6.0%, non-aggregate)
Most Commonly Imposed Prison Term: 3 < 6 months (28.4% of those who received prison terms)
Longest Prison Term: 36+ months (1.7%)5

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Cocaine
Number of Cases: 89 (95 charges)

  • Community Correction Order – 40.5 %
  • Imprisonment – 29.2 %
  • Fine – 13.5 %
  • Wholly Suspended Sentence – 11.2 %
  • Adjourned Undertaking/Discharge/Dismissal – 3.4 %
  • Partially Suspended Sentence – 1.1 %
  • Other – 1.1 %
Most Commonly Imposed CCO Term: 12 < 18 months (41.7% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (5.6%, non-aggregate)
Most Commonly Imposed Prison Term: 3 < 6 months (26.9% of those who received prison terms)
Longest Prison Term: 36+ months (3.9%)6

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Ecstasy
Number of Cases: 548 (581 charges)

  • Community Correction Order – 50.7 %
  • Imprisonment – 23.5 %
  • Fine – 12.2 %
  • Adjourned Undertaking/Discharge/Dismissal – 8.0 %
  • Wholly Suspended Sentence – 4.4 %
  • Partially Suspended Sentence – 0.6 %
  • Youth Justice Centre Order – 0.4 %
  • Other – 0.2 %
Most Commonly Imposed CCO Term: 12 < 18 months (51.9% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (4.7%, non-aggregate)
Most Commonly Imposed Prison Term: “< 3 months" and "3 < 6 months" (24.0% respectively of those who received prison terms)
Longest Prison Term: 36+ months (4.7%)7

Imprisonment
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Heroin
Number of Cases: 459 (524 charges)

  • Imprisonment – 46.8 %
  • Community Correction Order – 30.9 %
  • Wholly Suspended Sentence – 10.7 %
  • Partially Suspended Sentence – 4.1 %
  • Fine – 2.4 %
  • Other – 2.4 %
  • Adjourned Undertaking/Discharge/Dismissal – 2.4 %
  • Youth Justice Centre Order – 0.2 %
Most Commonly Imposed Prison Term: 3 < 6 months (29.3% of those who received prison terms)
Longest Prison Term: 36+ months (0.9%)
Most Commonly Imposed CCO Term: 12 < 18 months (50.0% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (6.5%, non-aggregate)8

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Methylamphetamine
Number of Cases: 2,090 (2,339 charges)

  • Community Correction Order – 42.6 %
  • Imprisonment – 39.6 %
  • Wholly Suspended Sentence – 7.0 %
  • Fine – 4.6 %
  • Partially Suspended Sentence – 2.5 %
  • Adjourned Undertaking/Discharge/Dismissal – 1.8 %
  • Other – 1.5 %
  • Youth Justice Centre Order – 0.3 %
Most Commonly Imposed CCO Term: 12 < 18 months (50.1% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (6.4%, non-aggregate)
Most Commonly Imposed Prison Term: 3 < 6 months (28.3% of those who received prison terms)
Longest Prison Term: 36+ months (1.1%)9

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Prescribed Drugs
Number of Cases: 40 cases (44 charges)

  • Community Correction Order – 42.5 %
  • Imprisonment – 30.0 %
  • Fine – 7.5 %
  • Other – 5.0 %
  • Adjourned Undertaking/Discharge/Dismissal – 5.0 %
  • Partially Suspended Sentence – 2.5 %
Most Commonly Imposed CCO Term: 12 < 18 months (40.0% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (5.0%, non-aggregate)
Most Commonly Imposed Prison Term: < 3 months (50.0% of those who received prison terms)
Longest Prison Term: 24 < 36 months (8.3%)10

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Tetrahydracannibanol
Number of Cases: 44 (45 charges)

  • Community Correction Order – 43.2 %
  • Imprisonment – 25.0 %
  • Wholly Suspended Sentence – 9.1 %
  • Fine – 9.1 %
  • Adjourned Undertaking/Discharge/Dismissal – 9.1 %
  • Partially Suspended Sentence – 4.6 %
Most Commonly Imposed CCO Term: 12 < 18 months (47.6% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (9.5%, non-aggregate)
Most Commonly Imposed Prison Term: 6 < 12 months (36.4% of those who received prison terms)
Longest Prison Term: 24 < 36 months (9.1%)11

 
Drugs, Poisons And Controlled Substances Act 1981 (Vic) s 71AC – Trafficking Other Drugs
Number of Cases: 418 (464 charges)

  • Community Correction Order – 38.0 %
  • Imprisonment – 37.3 %
  • Fine – 9.3 %
  • Wholly Suspended Sentence – 6.9 %
  • Adjourned Undertaking/Discharge/Dismissal – 3.4 %
  • Partially Suspended Sentence – 3.1 %
  • Other – 1.4 %
  • Youth Justice Centre Order – 0.5 %
Most Commonly Imposed CCO Term: 12 < 18 months (49.7% of those who received non-aggregate CCOs)
Longest CCO Term Imposed: 24+ months (6.1%, non-aggregate)
Most Commonly Imposed Prison Term: 3 < 6 months (30.3% of those who received prison terms)
Longest Prison Term: 36+ months (0.7%)12

 
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.13
 
Call Doogue + George

Other important resources
Case studies related to the charge of Trafficking in a Drug of Dependence:

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.
 



[1] Sentencing Advisory Council. “SACStat Higher Courts – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking in a non-commercial quantity of a drug of dependence.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_9719_71AC.html (accessed August 19, 2019).
[2] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed August 19, 2019).
[3] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – traffick GHB.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.html (accessed August 19, 2019).
[4] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking amphetamines.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.2.html accessed August 19, 2019).
[5] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking cannabis.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.3.html (accessed August 19, 2019).
[6] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking cocaine.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.4.html (accessed August 19, 2019).
[7] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking ecstasy.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.5.html (accessed August 19, 2019).
[8] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking heroin.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.6.html (accessed August 19, 2019).
[9] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking methylamphetamine.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.7.html (accessed August 19, 2019).
[10] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking prescribed drugs.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.8.html (accessed August 19, 2019).
[11] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – trafficking tetrahydracannibanol.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.9.html (accessed August 19, 2019).
[12] Sentencing Advisory Council. “SAC Statistics – Drugs, Poisons And Controlled Substances Act 1981 (Vic): s 71AC – traffick in a drug of dependence (other).” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9719_71AC.10.html (accessed August 19, 2019).
[13] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed August 19, 2019).