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Trafficking Dangerous Drugs

Potts Lawyers > Drug Charges > Trafficking Dangerous Drugs

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):-

  • Amphetamine;
  • Cocaine;
  • Heroin;
  • Lysergide;
  • 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):-

  • Cannabis;
  • Codeine;
  • Methadone;
  • Morphine;
  • Opium; and
  • Oxycodone;
  • 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.

Maximum Penalty
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.

Maximum Penalty

The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and

Is of or exceeds the quantity specified in schedule 4.

25 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and

Is of or exceeds the quantity specified in schedule 3 but is less than the quantity specified in schedule 4; and

The accused satisfies the Court that they were a drug dependent person at the time of committing the offence.

20 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1; and

Is of or exceeds the quantity specified in schedule 3 but is less than the quantity specified in schedule 4; and

The accused does not satisfy the Court that they were a drug dependent person at the time of committing the offence.

25 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 2; and

Is of or exceeds the quantity specified in schedule 3.

20 years imprisonment
The dangerous drug is specified in the Drugs Misuse Regulation, schedule 1 or 2; and

Is less than the quantity specified in schedule 3.

15 years imprisonment

Who is a drug dependent person?

A drug dependent person is someone who, as a result of repeated drug use, demonstrates impaired control or drug-seeking behaviour that suggests impaired control over their continued use of the drug.

They also suffer, or are likely to suffer, mental or physical distress or disorder, when the drug use ceases.

What are the quantities in Schedules 3 and 4?

The specified quantities listed in schedules 3 and 4 of the Drugs Misuse Regulation are relevant to the penalty (see above).

Some examples of schedules 3 and 4 quantities include:-

Schedule 1 drugs

Drug Schedule 3 Schedule 4
Amphetamine 2.0g 200g
Cocaine 2.0g 200g
Lysergide (LSD) 0.004g 0.4g
Methylamphetamine 2.0g 200g
MDMA (ecstasy) 2.0g 200g

 

Schedule 2 drugs

Drug Schedule 3
Cannabis 500g

 Are there any defences open to me if I am charged with possessing a dangerous drug?

There are a number of defences to a charge of possessing dangerous drugs.  These include:

  • 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 possessing a dangerous drug, which court will my matter be in?

Possessing a dangerous drug is an indictable offence if the prosecution are alleging that you were in possession of the dangerous drug for a commercial purpose.  If this is the case, the matter will be heard in the Supreme Court.

If it is not alleged that the drugs were possessed for a commercial purpose, the prosecution may elect to have the matter dealt with summarily, which means that the matter will be heard in the Magistrates Court.

Am I eligible for Drug Diversion?

Section 122A of the Drugs Misuse Act states that:-

The court may, if the person is eligible under the Police Powers and Responsibilities Act 2000, section 379 to be offered an opportunity to attend a drug diversion assessment program, order the person to attend, and complete, a drug diversion assessment program as directed by a police officer.

Drug Diversion includes a combined assessment, education and counselling session with a qualified health service provider.  Attending a Drug Assessment and Education Session means that you will not have a conviction recorded for the minor drug offence.  Drug diversion may be offered twice.

You are eligible to be offered to attend a drug diversion assessment program if you:-

  • Are charged with a minor drug offence; and
  • Have not committed another indictable offence in circumstances that are related to the minor drug offence; and
  • Have not previously been sentenced to serve a term of imprisonment for an offence of trafficking, supplying, or producing dangerous drugs, or trafficking in relevant substances or things ; and
  • Have not previously been convicted of an offence involving violence against a person or, if you have been convicted of an offence involving violence against a person, the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 has expired; and
  • Have admitted to committing the minor drug offence during an electronically recorded interview; and
  • Have not been offered the opportunity to attend a drug diversion assessment program.

Eligible drug offences include:-

  • Possessing dangerous drugs;  and
  • Possession of anything used in connection with the administration, consumption or smoking of a dangerous drug or used in connection with such a purpose.

For each dangerous drug mentioned in the charge, the quantity of the substances containing the dangerous drug must be less than the prescribed quantity.  The prescribed quantity of common dangerous drugs include:-

Drug Prescribed quantity
Amphetamine 1.0g
Cocaine 1.0g
Lysergide (LSD) 0.00004g (3 tickets/tabs)
Methylamphetamine 1.0g
MDMA (ecstasy) 1.0g
Cannabis 50g

 Do I need a lawyer if I am charged with possession of a dangerous drug?

A conviction for possessing dangerous drugs (even small amounts of drugs) is a 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.

If you have been charged with this offence or any other type of drug offence, contact our experienced criminal lawyers for advice today.

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