Commonwealth Director of Public Prosecutions (CDPP)

Drug Trafficking, Selling and Cultivation

Drug Trafficking, Selling and Cultivation

Trafficking

A person traffics in a controlled drug if they:

  • sell it;
  • prepare it with the intention of selling it, or believing another person intends to sell it;
  • transport it with the intention of selling it, or believing another person intends to sell it;
  • guard or conceal it with the intention of selling it, or assisting another person to sell any of it; or
  • possess it with the intention of selling it.

Whilst drug importation offences tend to dominate the serious drug practice of the CDPP, trafficking offences are also prevalent.

In 2012-2013 the CDPP prosecuted 4 summary trafficking offences and 29 indictable trafficking offences under the Code. From time to time, the CDPP may also prosecute trafficking offences under the relevant State legislation, depending on the circumstances of the case.

Pre-Trafficking

The Criminal Code also contains offences for pre-trafficking controlled precursors, although these offences have rarely been prosecuted. Pre-trafficking includes selling, manufacturing, or possessing a precursor and must be accompanied by specified fault elements relating to manufacture and sale.

The CDPP did not prosecute any pre-trafficking offences in 2012-2013.

Commercial Cultivation

The Code criminalises the commercial cultivation of controlled plants. Cultivation includes:

  • planting;
  • transplanting;
  • nurturing, growing or tending;
  • guarding or concealing; and
  • harvesting, picking or gathering resin from a plant .

A person cultivates a controlled plant if they engage in cultivation, exercise control or direction over the cultivation of the plant/s or provide finance for cultivation.

Cultivation will be regarded as being commercial if it is done with the intention of selling the plant or its products or believing that another person intends to do so.

The CDPP does not tend to prosecute many cultivation offences.

Selling Controlled Plants

The Code criminalises the sale of controlled plants.

The CDPP does not tend to prosecute many of these offences.

Commonly Used Offences

  • s.302.2(1) Criminal Code – trafficking commercial quantities of controlled drugs
  • s.303.6(1) Criminal Code – cultivating controlled plants
  • s.304.1 Criminal Code – selling commercial quantities of controlled plants

Penalties

The maximum penalties for trafficking controlled drug offences are as follows:

  • s.302.2 Criminal Code – trafficking commercial quantity of controlled drugs – life imprisonment;
  • s.302.3 Criminal Code – trafficking marketable quantity of controlled drugs – 25 years imprisonment;
  • s.302.4 Criminal Code – trafficking controlled drugs – 10 years imprisonment.

The maximum penalties for cultivation of controlled plants are as follows:

  • s.303.4 Criminal Code – cultivating commercial quantity of controlled plants – life imprisonment
  • s.303.5 Criminal Code – cultivating marketable quantity of controlled plants – 25 years imprisonment;
  • s.303.6 Criminal Code – cultivating controlled plants – 10 years imprisonment.

The maximum penalties for selling controlled plants are as follows:

  • s.304.1 Criminal Code – selling commercial quantity of controlled plants – life imprisonment
  • s.304.2 Criminal Code – selling marketable quantity of controlled plants – 25 years imprisonment;
  • s.304.3 Criminal Code – selling controlled plants – 10 years imprisonment.

Sentencing

The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/

Relevant Legislation

Criminal Code

Criminal Code Regulations

Director’s Litigation Instructions

DLI 5 – PDF icon Charging Importation Cases involving Substitution of Drugs or Precursors

DLI 8 – Charging Guideline for Domestic Drug Offences under Part 9.1 of the Criminal Code

Law Reform

On 29 May 2013 the Criminal Code Amendment Regulation 2013 (No. 1) commenced. This amendment significantly expanded the schedules of controlled and border controlled drugs and moved the schedules from the Criminal Code to the Criminal Code Regulations. This allows for illicit substances to be listed more quickly and improves the Commonwealth’s ability to be responsive as illicit markets evolve.

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