The Law Handbook 2024

Chapter 3.2: Drug offences 135 2 VR 215 (‘ Pierce case ’) extends offering to sell to include a ‘rip-off’, so that even where there is no proof that there is an intention to complete the offer or that the accused was even in a position to complete such, they may be found guilty of trafficking. In the Pierce case, the court only required proof that the accused intended the offer to sell to be taken seriously; 6 possessing a drug together with an intention to sell it, even though there is no sale. It is common to find persons telling the police that the reason for their possession is that they intend to sell some of the drug, but that confession is accompanied by a vehement denial that any sale has taken place. These persons are guilty of trafficking; 7 buying drugs for a friend from a third person if that friend has given you the money to buy the drugs, even if a profit is not made from the transaction; 8 arranging for one party to sell to another party, even if no profit is made. Penalties for trafficking The penalties for trafficking under the DPCS Act are as follows: • For trafficking offences of non-commercial quan- tities heard on indictment, the maximum penalty is 15 years’ imprisonment (s 71AC(1)). • For trafficking to a person under the age of 18 years (s 71AB), or trafficking at or within 500 metres of a school, the maximum penalty is 20 years’ imprisonment, or a fine of up to 2400 pu, or both (s 71AC(2)). • For trafficking to a person under the age of 18 years at or in a public place that is within 500 metres of a school, the maximum penalty is 25 years’ imprisonment (s 71AB(2)). • The penalties for trafficking commercial quan- tities are very severe: the maximum penalty is 25 years’ imprisonment (s 71AA(1)). This offence is a category 2 offence under the Sentencing Act, which means a court must impose a custodial order for this offence unless an exception applies (s 5(2H)(a)–(e) Sentencing Act). • The maximum penalty for trafficking commercial quantities for the benefit of, or at the direction of, a criminal organisation is life imprisonment and a fine of 5000 pu (s 71AA(2)). This offence is a category 1 offence under the Sentencing Act, which means that the court must impose a custodial order (s 5(2G) Sentencing Act). • For trafficking large commercial quantities, the maximum penalty is life imprisonment and a fine of up to 5000 pu (s 71). This offence is a category 1 offence under the Sentencing Act. Prima facie evidence of trafficking If a person possesses a traffickable quantity of a dangerous drug, this is prima facie evidence of traf- ficking. This means that a court or jury, in the absence of evidence to the contrary, may be satisfied beyond reasonable doubt that the offence has been committed (s 73(2) DPCS Act). The burden remains on the prosecution to establish the case beyond reasonable doubt. That is, although the amount in a person’s possession may establish traf- ficking prima facie , a court or jury may, after considering all of the circumstances and whether or not the accused has given evidence, decide that the prosecution has not proven trafficking beyond reasonable doubt. If the prosecution proves: 1 possession (see ‘Possession: Offences and penalties’ above; note the effect of Momcilovic v The Queen [2011] 245 CLR 1: the section 5 deeming provision does not apply to trafficking charges based on possession); 2 the identity of the drug; and 3 the quantity is a traffickable quantity (see ‘Traffickable quantity’, below), then that is prima facie evidence of trafficking. Possession is prima facie evidence of trafficking in the way(s) that are consistent in the case. In a case where all the evidence showed that the person in possession had not manufactured the drug, the possession would not be prima facie evidence of trafficking in that way ( R v Clarke and Johnstone [1986] VR 643 at 659). Quantities The Court of Appeal has decided that the relative harmfulness of the particular drug is an irrelevant consideration when determining sentences ( R v Pidoto and O’Dea [2006] VSCA 185). However, the amount of a drug alleged to be possessed or trafficked has a significant impact on the penalty. The legislation makes a distinction between the following quantities: small, traffickable, commercial mixed, commercial pure, large commercial mixed, and large commercial pure. The exact measurements of the quantities for each drug is set out in the DPCS Act (sch 11). Schedule 11,