The Law Handbook 2024

134 SECTION 3: Fines, infringements and criminal law • He Kaw Teh v The Queen [1985] HCA 43; • Pereira v Director of Public Prosecutions [1988] HCA 57; and • R v Clare [1993] QCA 558. Penalties for possession Possession of cannabis or THC in a small quantity (50 grams or less) that is not related to trafficking carries a penalty of not more than 5 pu. For a first offence before a court (i.e. the person did not receive a caution nor diversion), the penalty is often very low; for example, a section 76 bond (see ‘Summary of penalties’, below). As discussed above, people found in possession of a small quantity of cannabis for the first time are usually cautioned or receive diversion and so avoid any finding of guilt or formal sentence from a court. The maximum penalty for possession of any drug where possession of the drug is not related to trafficking is a fine of 30 pu or imprisonment for one year, or both (s 73(1)(b) DPCS Act). For these two lower maximum penalties to apply, the accused must satisfy the court, on the balance of probabilities, that the possession was not related to trafficking. If the court is not satisfied that the possession was not for the purpose of trafficking, then there is a higher maximum penalty of a fine of up to 400 pu or imprisonment for five years, or both (s 73(1)(c) DPCS Act). Possession of a traffickable quantity If the prosecution proves: • possession; • the identity of the drug; and • that the quantity is a traffickable quantity, then that is prima facie evidence of trafficking (s 73(2) DPCS Act). Trafficking: Offences and penalties Trafficking is an indictable offence. However, it can be tried summarily for amounts under a commercial quantity. What is trafficking? Trafficking at common law means ‘movement from source to ultimate user in the course of trade’ ( R v Clarke and Johnstone [1986] VR 643 at 659). Trafficking at common law additionally requires at least an activity performed in a commercial setting and contact between the alleged trafficker and at least one other person ( Giretti v The Queen (1986) 24 A Crim R 112). Trafficking includes selling in the ordinary sense. Trafficking may be proved by: 1 direct evidence (observation of, or participation in, a sale); 2 inference (a conclusion from a set of facts, such as possession of a quantity of a drug much larger than an amount for personal use, the drug has been packaged for sale, and where there are a number of indicators of sale, such as scales, bags, cash, etc.); or 3 admission (a confession to the police). Trafficking has elements of movement and com­ merce (see R v Holman [1982] VR 471, at 475 per Lush J, compare D’Aloia v Brilliant [1984] VicSC 292). NOTE To make a gift is not trafficking. Extended definition in the DPCS Act The DPCS Act (s 70(1)) defines trafficking to include: 1 preparing a drug of dependence for trafficking; 2 manufacturing a drug of dependence; or 3 selling, exchanging, agreeing to sell, offering for sale, or having in possession for sale, a drug of dependence. Using the extended definition, the following may constitute trafficking: 1 preparing a drug for trafficking – thus a person who dries cannabis or packages heroin is guilty of trafficking, provided that the preparation was intended for trafficking; this is so even though no actual trafficking has occurred; 2 manufacturing or making a drug, even though no actual trafficking has occurred; 3 selling or exchanging a drug for something; 4 agreeing to sell, even if the sale does not occur; 5 offering to sell a drug to another, whether or not the offer is accepted or the sale takes place. Even if the substance turns out not to be a drug of dependence on analysis, the mere belief by an accused that they were selling a drug of dependence is sufficient to come within the ambit of ‘offering to sell’ ( Gauci v Driscoll [1985] VicRp 47). The case of Pierce v The Queen [1996]