7.7.1 - Trafficking in a Drug of Dependence[1]

7.7.1.1 - Bench Notes

7.7.1 - Trafficking in a Drug of Dependence 1

7.7.1.1 - Bench Notes 1

Section 70(1) Definition of “Trafficking” 3

Preparing a Drug of Dependence for Trafficking 3

Agreeing and Offering to Sell a Drug of Dependence 3

Possessing a Drug of Dependence for Sale 4

Common Law Definition of “Trafficking” 6

Carrying on a Trafficking Business (Giretti Trafficking) 7

Attempted Trafficking 10

Intention to Traffick in a Drug of Dependence 12

Commercial and Large Commercial Quantities 14

Mixtures of Drugs 15

Determining Quantity 16

Aggregating Quantities 17

Intention to Traffick in a Particular Quantity 18

Giretti Trafficking and Intention to Traffick in a Quantity 19


Commencement Information

1. The Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the “Drugs Act”) establishes four trafficking offences, each of which commenced operation on 1 January 2002:

i) Section 71 – trafficking in a large commercial quantity of a drug of dependence;

ii) Section 71AA – trafficking in a commercial quantity of a drug of dependence;

iii) Section 71AB – trafficking in a drug of dependence to a child;

iv) Section 71AC – trafficking in a drug of dependence.

2. Prior to 1 January 2002 there was only one trafficking provision (s71), which contained the elements of the offence and specified different penalties depending upon the quantity trafficked. This created uncertainty about whether there was just one offence with aggravating circumstances, or a number of distinct offences (see R v Satalich [2001] VSCA 106). One of the purposes behind the enactment of the current provisions was to make it clear that there are a number of distinct trafficking offences (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299).

3. If a trafficking offence is alleged to have been committed between dates, one date before and one date on or after 1 January 2002, then the offence is to be treated as having been committed before the commencement of the current provisions (Drugs Act s137).

Overview of Elements

4. For each of the trafficking offences, the prosecution must prove the following elements beyond reasonable doubt:

i) That the accused intentionally “trafficked” or “attempted to traffick” in a particular substance; and

ii) That it was a “drug of dependence” that the accused intentionally trafficked or attempted to traffick.

5. In relation to ss71 and 71AA, the prosecution must also prove that the accused intentionally trafficked or attempted to traffick in a quantity of drugs that was not less than a large commercial or commercial quantity respectively.

6. In relation to s71AB, the prosecution must prove that the accused intentionally trafficked or attempted to traffick to a child.

7. Each of the trafficking provisions exclude from their scope people who are authorised or licensed to traffick in a drug of dependence.

Definitions of “Trafficking”

8. “Trafficking” is defined in s70(1) of the Drugs Act. However, as this definition is inclusive, it is also possible to rely on the common law definition of trafficking (R v Giretti (1986) 24 A Crim R 112). Both of these definitions are addressed in turn below.

9. Each of the trafficking offences requires the prosecution to prove that the relevant act of trafficking was intentional (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300).

Section 70(1) Definition of “Trafficking”

10. Section 70(1) of the Drugs Act defines trafficking to include:

· 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.

11. Although the terms “manufacture” and “sell” are defined in s4 of the Drugs Act, these definitions do not apply to the trafficking offences (s70(2)).

Preparing a Drug of Dependence for Trafficking

12. In relation to trafficking by “preparing a drug of dependence for trafficking”, the prosecution must prove that the accused:

· Prepared a drug of dependence;

· Intended to prepare that drug; and

· Prepared the drug for the purpose of trafficking (R v Giretti (1986) 24 A Crim R 112).

13. This requires the prosecution to prove that when the accused prepared the drug, they intended either that the drug would be dealt with in one of the ways specified in s70(1), or that it would be trafficked in the manner defined by the common law (see “Common Law Definition of ‘Trafficking’” below).

Agreeing and Offering to Sell a Drug of Dependence

14. In relation to trafficking by making an “agreement” or “offer” to sell a drug of dependence under s70(1), the prosecution must prove that the accused:

· Made a genuine agreement or offer to sell a drug of dependence to another person;

· Intended to make that agreement or offer; and

· Intended the agreement or offer to be regarded as genuine by the person to whom it was made (R v Peirce [1996] 2 VR 215; Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW CCA)).

15. It is not necessary for the prosecution to prove that the accused actually possessed the relevant drug, intended to complete the sale, or could ever have supplied the drug to the purchaser (Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW CCA); R v Peirce [1996] 2 VR 215).

16. It does not matter if the accused intended to provide a different substance from that which they offered, or to provide nothing at all, as long as they intended the agreement or offer to be regarded as genuine by the person to whom it was made (R v Addison (1993) 70 A Crim R 213 (NSW CCA)).

Possessing a Drug of Dependence for Sale

17. In relation to trafficking by “having in possession for sale a drug of dependence” under s70(1), the prosecution must prove that:

· The accused possessed a drug of dependence;

· The accused intended to sell that drug (see, e.g., R v Francis-Wright (2005) 11 VR 354).

18. The prosecution must prove possession for sale by establishing possession at common law. Section 5 of the Act, which deems a person to be in possession of a drug of dependence in specified circumstances, does not apply to trafficking offences (Momcilovic v R [2011] HCA 34).

19. At common law, a person has in their possession whatever is, to their knowledge, physically in their custody or under their physical control (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120).

20. According to this definition, common law possession of a drug of dependence has three elements:

1. The accused had physical custody or control of the drug;

2. The accused intended to have custody of or exercise control over the drug; and

3. The accused knew that the substance over which they had custody or control was a drug of dependence, or were aware that it was likely that it was a drug of dependence (R v Maio [1989] VR 281. See also He Kaw Teh v R (1985) 157 CLR 523; Momcilovic v R [2011] HCA 34).

21. A person may have possession of an item even though they are not carrying the item or do not have it on them, as long as they have physical custody of or control over the item (R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120).

22. It is not necessary for the prosecution to prove “exclusive possession”, that is, the right of the accused to exclude everyone else (other than those with whom s/he was acting in concert) from interference with the drug. The accused will possess a drug if the three elements outlined above are satisfied – even if there is a reasonable possibility that someone else also possessed that drug (R v Tran [2007] VSCA 164. See also R v Dibb (1991) 52 A Crim R 64 (NSW CCA); R v Cumming (1995) 86 A Crim R 156 (WA CCA) but c.f. Moors v Burke (1919) 26 CLR 265; Williams v Douglas (1949) 78 CLR 521)).

23. It is not always necessary to define the concept of possession at common law – the jury need only be told so much of the law as is necessary for them to know having regard to the issues in the trial (R v Clarke and Johnstone [1986] VR 643; R v Mateiasevici [1999] VSCA 120; R v Bandiera and Licastro [1999] VSCA 187; R v Tran [2007] VSCA 19).

24. A distinction is drawn between possessing a drug for the accused’s own use and possessing a drug for sale to others. While the former may provide the basis for a charge of possession of a drug of dependence (Drugs Act s73), it cannot sustain a charge of trafficking (R v Kardogeros [1991] 1 VR 269).

25. The prosecution only needs to prove that the accused had a general intention to sell the drug in the future. It is not necessary to prove that a particular sale was in contemplation at the material time, or that the accused had a specific buyer in mind (Reardon v Baker [1987] VR 887).

26. A drug may be in possession for sale even if the accused intends to mix it with another substance prior to sale (McNair v Terroni [1915] 1 KB 526; cited with approval by McGarvie J in R v Kardogeros [1991] 1 VR 269).

27. It may be possible for the jury to infer from the lack of usability of a portion of drugs possessed that the unusable portion was not possessed for sale. This may affect the quantity of drugs trafficked (see “Determining Quantity” below) (R v Coviello (1995) 81 A Crim R 293 (Vic CCA)).

28. A person who cultivates a drug may be guilty of trafficking (as well as the cultivation offences specified in ss72, 72A and 72B) if it can be shown that the drug was possessed for sale (R v Bandiera and Licastro [1999] VSCA 187; R v Kardogeros [1991] 1 VR 269; R v Stavropoulos and Zamouzaris (1990) 50 A Crim R 315; R v Clarke and Johnstone [1986] VR 643. For further information on the interaction of these offences, see “Trafficking, Cultivation and Possession” below).

Common Law Definition of “Trafficking”

29. At common law, the term “trafficking” has been held to at least connote:

· An activity performed in a commercial setting (i.e. a setting in which it can fairly be inferred that someone involved is making a profit);

· Participation by the alleged trafficker in the progress of goods from source to consumer; and

· Contact between the alleged trafficker and at least one other person (R v Holman [1982] VR 471; Giretti v R (1986) 24 A Crim R 112).

30. Mere possession of drugs will not be sufficient to constitute trafficking at common law. A person will not have been involved in common law trafficking if they were not involved in the onward movement of the drugs to the ultimate consumer (R v Holman [1982] VR 471; R v Kloufetos (1985) 14 A Crim R 426 (Vic CCA)).

31. So a person who possessed drugs will not have trafficked at common law even if it can be inferred that they possessed the drugs for a commercial purpose and intended to traffick in the future (cf. under the statutory definition of trafficking: see above). They must have at least committed an overt act directed towards transferring ownership or possession of the drugs (R v Holman [1982] VR 471; R v Kloufetos (1985) 14 A Crim R 426 (Vic CCA)).

32. While it is necessary for there to be contact between the alleged trafficker and at least one other person, it may be sufficient if it can be inferred that a person exists who plays the role of the other person in the movement of the drugs, even if the identity of that person is unknown (R v Holman [1982] VR 471).

33. Trafficking at common law may involve delivering or selling drugs to another person, or possibly purchasing or receiving drugs from another person (R v Holman [1982] VR 471).

34. Bartering, sending or forwarding drugs may also be trafficking at common law (Giretti v R (1986) 24 A Crim R 112).

35. A voluntary trader acting as a link between parties to a transaction may still be involved in trafficking at common law, even if they are acting without reward (Falconer v Pedersen [1974] VR 185).

36. A person need not ever have possessed an item, or held title to it, to have been involved in trafficking at common law (R v Holman [1982] VR 471).

Carrying on a Trafficking Business (Giretti Trafficking)

37. “Trafficking” can be established by proving that the accused committed an identifiable single act or transaction, such as selling drugs on a specific occasion. It can also be established by proving that the accused carried on a drug dealing business over a specified period of time (Giretti v R (1986) 24 A Crim R 112; R v Lao and Nguyen (2002) 5 VR 129; Mustica v R [2011] VSCA 79).

38. This latter type of trafficking (sometimes known as Giretti trafficking) requires the prosecution to prove that the accused was involved in a continuing trade or business of dealing in drugs, or had engaged on a regular and commercial basis in the transmission of drugs from source to consumer (Giretti v R (1986) 24 A Crim R 112; R v Te [1998] 3 VR 566; R v Lao and Nguyen (2002) 5 VR 129; Mustica v R [2011] VSCA 79).

39. The expression “trade” or “business” does not connote the existence of a formal structure or organisation. It is used in a broad sense to encompass a relatively continuous activity, performed over a designated period of time, involving commercial dealings in the prohibited substance (R v Lao and Nguyen (2002) 5 VR 129; Mustica v R [2011] VSCA 79).