Common Drug Offences in Victoria – Possession and Trafficking a Drug of Dependence

Possession and Trafficking Drugs of Dependence are some of the most common drug charges in Victoria. Drugs of Dependence are listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981. The more common and well known drugs of dependence include cannabis, methamphetamine and cocaine. Components and derivatives of a drug of dependence may also lead to a possession charge.

For Possession of a Drug of Dependence section 73 of the Drugs, Poisons and Controlled Substances Act states that:\

“Any person who without being authorised by or licenced under this Act has or attempts to have in their possession a drug of dependence is guilty of an indictable offence”

For Trafficking a Drug of Dependence section 71AC of the Drugs, Poisons and Controlled Substances Act states that:

“Any person who trafficks or attempts to traffick in a dug of dependence is guilty of an indictable offence and liable to level 4 imprisonment”

Trafficking is defined in section 70 of the Drugs, Poisons and Controlled Substances Act as:

• Preparing a drug of dependence for trafficking;
• Manufacturing a drug of dependence; or
• Selling, exchanging, agreeing to sell, offering for sale or having in possession for sale, a drug of dependence.

The elements of Possession and Trafficking a Drug of Dependence

To be found guilty of Possession of a Drug of Dependence, the Prosecution must prove the following elements, beyond reasonable doubt:

• The substance in question was a drug of dependence; and
• The offender possessed that substance.

For Trafficking, the Prosecution must prove the following elements, beyond reasonable doubt:

• The offender intentionally committed an act/carried on a business of trafficking;
• The offender intentionally trafficked a drug of dependence.

Actions which may lead to a Possession or Trafficking a Drug of Dependence charge

The following actions may lead to a Possession charge:

• Having a gram bag of cocaine stuffed in your wallet;
• Cannabis is found in your bedroom (including leaves and stems);
• Having methamphetamine locked away in a safe.

The following actions may lead to a Trafficking charge:

• Selling 1 gram of cannabis to your friend;
• Being in possession of methamphetamine, with messages on your phone indicating that you are organising to meet with someone so you can sell it to them;
• Cocaine being found in your possession with multiple gram bags,
• weighing scales and tick sheets;
• Taking a drug of dependence from one person to another (also known as muling).

Defences

The following defences may be used to successfully defend a Possession charge:

• The offender is authorised to possess the drug of dependence, for example they have authorisation to possess medicinal cannabis;
• The offender was not in possession of the drug of dependence, for example, the offender shares a vehicle with their brother and the drug was found in a bag belonging to the brother;
• The offender was not aware what the substance was (very difficult defence to successfully run).

The following defences may be used to successfully defend a Trafficking charge:

• The offender did not intend on trafficking the drug of dependence, for example, the substance was for personal use only (will still incur a possession charge);
• The offender was under duress, for example, another person threatened violence on another if they did not move the substance from one person to another;

The circumstances surrounding a trafficking charge are very important. If there is a lack of evidence around the offender’s intent to traffick, the charge may be successfully challenged. It is therefore very important to have expert legal representation, we recommend you call Nardi Lawyers for more details on how to defend these charges.

Sentence

The most common sentences for individuals who pleaded guilty to Possession of a Drug of Dependence between 1 July 2018 to 30 June 2021 are:

• Imprisonment – 49.3%
• Community Correction Order – 20.8%
• Fine – 17.7%
• Adjourned Undertaking – 10.8%
• Other – 1.4%

The most common sentences for individuals who pleaded guilty to Trafficking a Drug of Dependence between 1 July 2018 to 30 June 2021 are:

• Imprisonment – 52.5%
• Community Correction Order – 32.3%
• Fine – 10.3%
• Adjourned Undertaking – 3.1%
• Other – 1.8%

See our article on Sentences for further information