Drug Trafficking

Published: 26 November 2020
Published: 26 November 2020
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Trafficking in Dangerous Drugs – Queensland

Drug trafficking, or ‘trafficking in dangerous drugs’ as the offence is described in Queensland, is a serious criminal offence, generally punishable by actual imprisonment. In Queensland, the maximum penalty for carrying on the business of unlawful trafficking is 25 years’ imprisonment.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of drug trafficking.

If you face a charge of trafficking in a dangerous drug, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Queensland Law

Section 5 Drugs Misuse Act (Qld)

Section 5 of the Drugs Misuse Act (Qld) makes trafficking in dangerous drugs an offence in Queensland. The law states:

Trafficking in dangerous drugs

(1) A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime. Maximum penalty—25 years imprisonment.

(2) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.

(3) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.

Section 161Q of the Penalties and Sentences Act 1992 refers to the ‘serious organised crime circumstance of aggravation’, which mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit a drug trafficking offence in association with being a participant of a criminal organisation.

Relevant Definitions

Definition: Unlawfully

The meaning of the word ‘unlawfully’ is defined in section 4 of the Drugs Misuse Act (Qld):

unlawfully means without authorisation, justification or excuse by law.

Definition: Dangerous Drug

Section 4 of the Drugs Misuse Act (Qld) defines ‘dangerous drug’ to mean:

dangerous drug means—

(a) a thing stated in the Drugs Misuse Regulation 1987, schedule 1 or 2; or

(b) any part of a plant that is a thing stated in the Drugs Misuse Regulation 1987, schedule 1 or 2; or

(c) a derivative or stereo-isomer of a thing mentioned in paragraph (a) or (b); or

(d) a salt of a thing mentioned in any of paragraphs (a) to (c); or

(e) an analogue of a thing mentioned in any of paragraphs (a) to (d); or

(f) a thing that has, or is intended to have, a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e); or

Note— See also section 4BA for when a thing is intended to have a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e).

(g) a thing mentioned in any of paragraphs (a) to (f) that is contained in—

(i) a natural substance; or

(ii) a preparation, solution or admixture.

Meaning of ‘carrying on the business of unlawfully trafficking’

The term ‘carrying on the business of unlawfully trafficking’ is not defined in the Drugs Misuse Act (Qld). As such, to understand the meaning it is important to understand how courts have interpreted it. In R v Elhusseini [1988] 2 Qd R 442, the word ‘trafficking’ was stated to mean “knowingly engaging in the movement of drugs from source to ultimate user”. To that end, it is possible to be knowingly engaged in the movement of drugs from source to ultimate user without “carrying on the business” of trafficking. For instance, a person may supply a dangerous drug to another person without it being classified as carrying on the business of trafficking. For that reason, proof that a person was “carrying on the business” of trafficking is critical to proof of the charge. In R v Elhusseini [1988] 2 Qd R 442, it was stated with respect to the term “carrying on the business”:

Carrying on business, particularly where the subject matter of that business is goods or services, usually involves a series of activities, such as advertising or promoting the “product” by communicating with prospective buyers; setting up lines of supply; negotiating prices and terms of supply and payment; soliciting and receiving orders, arranging for places and times of delivery, and so on. Such activities are the res acta or res gestae of business and the indicia of its carrying on. Invariably they involve conversations because it is scarcely possible to carry on business without communication of some kind. Evidence of the content of such conversation is, however, admitted not to prove the truth of the matter communicated but rather to establish the fact that it was said or stated. It may on occasions be positively untrue, as where a false representation is made concerning the quality of goods to be supplied. Misrepresentations are, regrettably, a not infrequent concomitant of some businesses; but they none the less form part of its carrying on. Such and other statements, conversations and communications, as well as associated physical acts or conduct, are admitted as original evidence of the carrying on of business.

Drug Trafficking: Elements

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

For a drug trafficking case in Queensland, the prosecution sets out to prove that (1) the person charged (2) carried on the business of (3) unlawfully (4) trafficking in a (5) dangerous drug. Whether one or more of these elements is a real issue in a trial will depend on the circumstances of the case. For instance, a prosecution case based only on intercepted communications may involve no question of identity, but it may be disputed that any conversations concerned drugs. In other cases, there may be no dispute that there is evidence of drug trafficking, however the person charged disputes that they were involved in carrying on the business, if at all.

One matter the prosecution does not need to prove is the particular dangerous drug in respect of which the offence is alleged to have been committed. Section 129(1)(b) allows a person to be convicted as charged provided there is sufficient proof that “the thing to which the charge relates was at the material time a dangerous drug”. This allows the police and prosecutors to bring drug trafficking cases on circumstantial evidence alone without the need to specify that the trafficking concerned ‘heroin’, ‘methylamphetamine’, ‘cannabis’, or some other dangerous drug.

In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty of the same offence. For instance, a person may be found guilty if they aided or encouraged another person in an offence of trafficking in dangerous drugs.

In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.

Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as trafficking in a dangerous drug, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.

For drug trafficking charges, the prosecution must not only prove the elements of the offence beyond reasonable doubt, it must also disprove all defences that may apply beyond reasonable doubt. However, as is outlined below, the Drugs Misuse Act (Qld) does create some modifications as to the onus of proof for some defences, which can impact how a particular defence may be established.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for ‘trafficking in a dangerous drug’

The law requires the prosecution to prove that the charge was committed ‘unlawfully’. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty.

Some defences available under the Criminal Code (Qld) do not apply to drug trafficking, and others, such as compulsion or extraordinary emergency, may only arise in exceptional circumstances. A common issue in cases involving drug charges is whether the person charged had an honest and reasonable but mistaken fact about the thing found in their possession. Such issues possibly give rise to a defence of ‘mistake of fact’ under section 24 of the Criminal Code (noting that defence is qualified by s. 129(1)(d) of the Drugs Misuse Act). The Queensland Court of Appeal in R v Duong [2015] QCA 170 determined that for a mistake of fact defence to apply, it cannot be a belief that the person charged was simply dealing with a different, potentially less serious form of, dangerous drug. That is, it is only if a person establishes a belief that they were not in possession of any dangerous drug that they may be acquitted due to a defence of ‘mistake of fact’.

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of drug trafficking should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Penalties & Sentences

Maximum Penalty

The maximum penalty for trafficking in dangerous drugs in Queensland is 25 years’ imprisonment.

Minimum Penalty

While many offences under Queensland law do not carry mandatory minimum sentences, drug trafficking does when a person is convicted of the following circumstance of aggravation:

  1. When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years’ imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, on top of whatever other penalty is set by the court.

Sentencing in Queensland

For a charge of trafficking in a dangerous drug, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations. For a drug offence, the law states that the court must have regard to the following considerations:

(a) principles that—

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; and

(b) the maximum and any minimum penalty prescribed for the offence; and

(c) the nature of the offence and how serious the offence was, including—

(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under section 179K; and

(ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence; and

(d) the extent to which the offender is to blame for the offence; and

(e) any damage, injury or loss caused by the offender; and

(f) the offender’s character, age and intellectual capacity; and

(g) the presence of any aggravating or mitigating factor concerning the offender; and (ga) without limiting paragraph (g), whether the offender was a participant in a criminal organisation—

(i) at the time the offence was committed; or

(ii) at any time during the course of the commission of the offence; and

(h) the prevalence of the offence; and

(i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

(j) time spent in custody by the offender for the offence before being sentenced; and

(k) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and

(l) sentences already imposed on the offender that have not been served; and

(m) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender; and

(n) if the offender is the subject of a community based order—the offender’s compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer; and

(o) if the offender is on bail and is required under the offender’s undertaking to attend a rehabilitation, treatment or other intervention program or course—the offender’s successful completion of the program or course; and

(p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example—

(i) the offender’s relationship to the offender’s community; or

(ii) any cultural considerations; or

(iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and

(q) anything else prescribed by this Act to which the court must have regard; and

(r) any other relevant circumstance.

Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

Leaving aside any mandatory minimum penalties that may apply, punishment for drug trafficking charges generally involve sentences of imprisonment. In some cases, immediate parole or a full suspension of the imprisonment may be possible. In other cases, a person may see the offence deemed a ‘serious violent offence’ by the court, which mandates an offender serve 80% of the imprisonment before they are eligible for release.

In R v Bradforth [2003] QCA 183, the major determinants of sentencing outcomes was summarised at paragraph [29]:

Major determinants of penalty in trafficking cases include the type of drugs supplied, the quantity of the drugs, their value, the nature of the venture or undertaking, and whether the activities are commercial or are engaged in to feed a habit. In all cases, however, regard must be had to the maximum penalties imposed by statute and the recognition by the Legislature and the courts that the purveying of drugs of the nature of those under consideration, however motivated, has the potential to cause much individual suffering, as well as social harm and decay.

Significant Cases

The charge of trafficking in a dangerous drug has involved a number of significant legal decisions over time, including in the High Court of Australia. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with drug trafficking.

High Court of Australia

In York v The Queen [2005] HCA 60, the High Court reinstated a wholly suspended sentence imposed in the Supreme Court of Queensland, which had been increased on appeal by the Queensland Court of Appeal. In that case, the appellant was sentenced to a period of imprisonment for five years, which was wholly suspended. But for the significant and valuable cooperation the appellant had given to law enforcement agencies, the sentence imposed was likely to have been in the order of “10 to 12 years”. Due to the risks to the appellant’s life, and that of her family, the sentence was greatly reduced to reflect the circumstances of the individual case. The Chief Justice of the High Court, in agreeing with other members of the Court that the sentence of the primary judge should stand, stated at paragraph [8]:

It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender’s safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released.

Queensland Court of Appeal

In R v Patena [1996] QCA 152, the Court of Appeal considered the requirements for proof of a drug trafficking charge in Queensland. Importantly, it contains statements of principle relating to what may constitute new or emerging drug trafficking enterprises:

It should be noted, however, that the offence commonly referred to as trafficking is in truth one of carrying on the business of trafficking; see s. 5 of the Drugs Misuse Act 1986 (“the Act”). The reference to carrying on business in the section was discussed in Quaile [1988] 2 Qd.R. 103. There, Macrossan J., as his Honour then was, pointed out that a single action, not repeated, can constitute a trafficking and a business can be said to be carried on from the point when the first transaction performed in the conduct of that business has occurred. That conclusion can only be drawn, his Honour said, if the transaction is intended to be repeated (114). In Elhusseini [1988] 2 Qd.R. 442, it was said that carrying on a business for the purposes of s. 5 of the Act implies a degree of continuity (445), that carrying on a business usually involves a series of activities (451) and that evidence of intention with respect to future transactions is particularly relevant where a single sale is relied on by the prosecution (454).

These cases, and indeed the simple proposition that even the largest business must have a beginning, show that the offence of trafficking may be proved even though there has been only a small number of dealings – even one dealing can be enough if it is intended to be the first transaction in what is expected to be a continuing activity. It should therefore not, in our view, be assumed that a collection of offences of unlawful supply under s. 6 will necessarily attract a penalty well below any trafficking offence.

The following drug offences are possible charges that may be substituted for, or charged in addition to, a charge of drug trafficking:

Drug Trafficking - Criminal Law Expertise