The following drug charge article was written by a practicing criminal lawyer with experience in drug charges. For information on other drugs charges, visit our Drug Charges home page.
What is the law on trafficking in dangerous drugs?
Section 5 of the Drugs Misuse Act states that:
A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.
What does the prosecution have to prove?
To find you guilty of trafficking in dangerous drugs, the prosecution would have to prove the following elements beyond a reasonable doubt:-
- That you carried on a business (see below for more);
- unlawfully (I.e. without a defence or an excuse – see below for more);
- trafficking (see below for more);
- A dangerous drug (see below for more).
What does” carrying on the business” mean?
The prosecution must prove that the accused was “carrying on the business” of unlawful trafficking. Proof of carrying on a business requires the police to establish several transactions done for gain over a more than a brief time span. A person does not need to trade indefinitely before a person can be said to carry on a business. Nor is there the need for the venture to be profitable.
Case law has suggested that carrying on a business usually involves a series of activities, including:
- Advertising or promoting the “product” by communicating with prospective buyers;
- Setting up lines of supply;
- Negotiating process and terms of supply and payment;
- Soliciting and receiving orders; and
- Arranging or places and times of delivery.
What does trafficking mean?
The word trafficking means trading in or dealing with and includes selling.
I’ve only sold drugs once – can this be considered trafficking?
Yes, it can. A single action of selling that is not repeated can still be considered trafficking in dangerous drugs. Usually a business requires the idea that there will be a repetition of selling, however the business is said to be carried on from the point of the first transaction.
In determining whether a single sale is regarded as an isolated act or done in the course of carrying on a business, the Court will look at your intention at the time. That is, whether the selling of the drug was done with a view of making a financial gain (either for yourself or for someone else)
What are dangerous drugs?
A dangerous drug is a thing that is listed in either Schedule 1 or Schedule 2 of the Drugs Misuse Regulation 1987.
Schedule 1 lists more serious drugs, including (but not limited to):-
- Methylamphetamine; and
- 3,4-Methylenedioxymethamphetamine (MDMA) (Ecstasy).
Schedule 1 also lists steroid drugs.
Schedule 2 lists over 100 less serious drugs. Some of these drugs are only listed if they are not in specified type of medicinal preparation. Drugs listed in Schedule 2 include (but are not limited to):-
- Opium; and
- Psilocybin (magic mushrooms).
A dangerous drug can also include things that:-
- have a chemical structure that is substantially similar to the chemical structure of a dangerous drug in Schedule 1 or 2; or
- have a pharmacological effect that is substantially similar to the pharmacological effect of a dangerous drug in Schedule 1 or 2; or
- is intended to have a pharmacological effect that is substantially similar to the pharmacological effect of a dangerous drug in Schedule 1 or 2.
What is the Maximum Penalty for trafficking in a dangerous drug?
The maximum penalty for trafficking in a dangerous drug varies depending on the type of drug, the quantity of the drug, and whether there are circumstances of circumstances.
|The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1||25 years imprisonment|
|The dangerous drug is specified in the Drugs Misuse Regulation, schedule 2||20 years imprisonment|
What factors influence the sentence of trafficking in a dangerous drug?
There are many factors that influence the level of sentence for an offence of trafficking, including:-
- the type of drug;
- the purity of the drug;
- the street value of the drug;
- the value of the drug trafficking enterprise;
- the period of the trafficking;
- the level of involvement of an accused person; and
- the accused person’s personal circumstances.
Are there any defences open to me if I am charged with trafficking in a dangerous drug?
There are a number of defences to a charge of trafficking in dangerous drugs. These include (but are not limited to):-
- that the drug was not a dangerous drug;
- mistake of fact (i.e. that you had an honest and mistaken belief that it was not a dangerous drug); and
- duress (i.e. that you were not acting with free will).
If I am charged with trafficking in a dangerous drug, which court will my matter be in?
Trafficking in a dangerous drug is an indictable offence. The matter will be heard in the Supreme Court.
Do I need a lawyer if I am charged with trafficking in a dangerous drug?
A conviction for trafficking in dangerous drugs (even small amounts of drugs) is a very serious matter that can have a major impact on your life and future. We strongly recommend that you talk to one of our lawyers, who can assist you by:-
- Advising on your prospects of contesting a charge;
- Guiding you through the court process;
- Negotiating with the prosecution;
- Suggesting ways to reduce penalty and the impact on your future;
- Reducing some of your stress by answering the difficult questions; and
- Appearing for you in court.
I have been served with paperwork about confiscations proceedings. What does this mean?
If you are charged with trafficking, the State of Queensland may commence proceedings under the Criminal Proceeds Confiscations Act 2002. This means that the State is applying to seize or otherwise deal with your property and assets.
If you are served with confiscations documents, contact one of our experienced lawyers immediately for urgent legal advice. There are very strict time limits involved in these sorts of proceedings. We will need to act quickly to protect your interests.