What Does the Prosecution Have to Prove?

Prosecution must prove the following elements of the offence beyond reasonable doubt:

• The identity of the person;
• That the named person did traffic in or possess the drugs;
• That the substance is a Controlled drug; and
• That there is a trafficable quantity of the drug.

What Defences Exist for Trafficking in a Controlled Drug?

If a person is found with drugs in the boot of the car for example, the prosecution must prove that the accused was in fact in possession and the accused had knowledge that the drug subject of the charge was in the accused’s possession, it must demonstrate that they knew it was a drug to which the act applies, and  that is was in fact a controlled drug in the sense that it is prohibited under the law.

Proof of mere knowledge of the presence of any particular charged item on a property is insufficient. It is necessary for the prosecution to go further and prove physical control over the item and an intention to exercise control over it.

What Court Hears Drug Trafficking Charges?

Charges under section 32 of the Controlled Substances Act are normally heard and dealt with by the District Court of South Australia. The only exception is as mentioned above, if a person is charged under section 32(3) and the offending involves cannabis, cannabis resin or cannabis oil, and not any other drug, the matter can be heard summarily in the Magistrates Court. However, if the Court is likely to impose a sentence of imprisonment exceeding 5 years, the matter will be committed to the District Court.

What is the Penalty for Trafficking in a Large Commercial Quantity of a Controlled Drug?

Under section 32 (1) of the Act, it is an offence to traffic in a large commercial quantity of a controlled drug. The maximum penalty for this offence is a fine of $1 000 000 or imprisonment for life or both.

What is the Penalty for Trafficking in a Commercial Quantity of a Controlled Drug?

Under section 32 (2) of the Act it is an offence to traffic in a commercial quantity of a controlled drug. The maximum penalty for a basic offence if the offender is a serious drug offender is $500,000 or imprisonment for life or both. The maximum penalty for a basic offence in any other case is $200,000 or imprisonment for 25 years or both. The maximum penalty for an aggravated offence is $500,000 or imprisonment for life or both.

What is the Penalty for Trafficking a Controlled Drug in a Prescribed Area??

Under section 32 (2a) of the Act it is an offence to traffic in a controlled drug in a prescribed area. The maximum penalty for a basic offence if the offender is a serious drug offender is $250,000 or imprisonment for 25 years or both. The maximum penalty for a basic offence in any other case is $75,000 or imprisonment for 15 years or both. The maximum penalty for an aggravated offence is $200,000 or imprisonment for 25 years or both.

What is the Penalty for Trafficking in a Controlled Drug?

Under section 32 (3) of the Act it is an offence to traffic in a controlled drug. The maximum penalty for a basic offence if the offender is a serious drug offender is $75,000 or imprisonment for 15 years or both. The maximum penalty for a basic offence in any other case is $50,000 or imprisonment for 10 years or both. The maximum penalty for an aggravated offence is $75,000 or imprisonment for 15 years or both

What is the Penalty for Trafficking Cannabis?

If the offence is charged under section 32(3) and it involves cannabis, cannabis resin or cannabis oil, and does not involve any other drug, the matter must be prosecuted and dealt with by the Magistrates Court as a summary offence but if the Court determine that a person found guilty of such an offence should be sentenced to a term of imprisonment exceeding 5 years, the Court must commit the person to the District Court for sentence.

Case Study: From Cultivating 6kg of Cannabis to No Conviction

Our client was charged initially charged with trafficking a large commercial quantity of cannabis pursuant to section 33 (1) of the Controlled Substances Act 1984 (SA).

The Penalty

The charge carried a maximum penalty of a fine in the amount of $1,000,000.00 and or life imprisonment in addition to criminal asset confiscation and forfeiture as it is presumed the proceeds of drug sales were used to purchase property.

Property Restraining Order

When the charge was initially laid, the DPP applied for a property restraining order, preventing our client from disposing, selling or otherwise dealing with his family home. This was a major indictable offence and would ultimately be heard in the District Court of South Australia.

Our client was extremely concerned that he would be required to serve a lengthy term of imprisonment and lose his family home. He had been living in rural South Australia and unknown to him, his neighbours commandeered his garden shed and established a commercial cannabis growing operation.

Initially, it was suggested that Our Client intended to sell more than 6kg of cannabis, and as such his home and assets were subject to an asset restraining order preventing him from dealing with his property.

No Conviction

Despite the overwhelming allegations, Our Adelaide Criminal Lawyer, Danial Esmaili, thoroughly reviewed volumes of evidence and successfully negotiated with the Prosecution to downgrade the charge to simple possession of cannabis in the amount of 1.1 kilograms which was still considered a trafficable quantity. The only way to overcome the presumption that he was a drug dealer was to persuade the Prosecution that it was for personal use.

Possession for Personal Use

This ultimately succeeded and a new charge was laid under section 33LA(2) of the Act which results in a $2,000.00 fine upon conviction and no asset forfeiture. In the end, the Court was persuaded that there was good reason pursuant to section 97 of the Sentencing Act 2017 (SA) to impose a penalty without recording a conviction upon Our Client entering a good behaviour bond for 3 years in the amount of $1000.00.

This was achieved by persuading the Magistrate that Our Client was unlikely to commit such an offence again, that the cannabis was entirely for personal use, and that his otherwise excellent character, lack of criminal record, old age, genuine remorse, substantial rehabilitation efforts and personal circumstances warranted a merciful approach.

As a result, the presiding Magistrate was persuaded that a conviction would disproportionately affect Our Client, and that it was not in the public interest to record a conviction. On that basis, the restraining order on his home was lifted. Our Client continues to enjoy living in Adelaide to-date.