Whenever the law enters the area of discerning a citizen's intent, it wanders into difficult and potentially perilous territory. Such is the case with drug trafficking charges.
The law in Australia defines trafficking as the supply of drugs in circumstances resembling a business or commercial nature. This definition can fit transactions involving large or small amounts of drugs. The charge might relate to one transaction or several.
Penalties are steep, with most states handing out penalties of 15 years in prison. The state of Queensland is able to punish traffickers with up to 25 years of jail time in certain circumstances. So it is essential for the state and related law enforcement agencies to get things right. But how?
What is trafficking?
According to Australia's Federal Prosecution Service, trafficking is characterised by behaviour indicating an intent to:
- Sell a controlled drug.
- Prepare a controlled drug 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.
- Possess it with the intention of selling it.
Additionally, most states utilise three thresholds of trafficking: low-level, commercial, and large commercial.
Distinguishing between mere possession of drugs and drug trafficking does give some policymakers pause. Concerns exist about the likelihood of overcharging or placing an undue burden of proof on someone who is either caught in possession of drugs or purchasing drugs.
The definition raises the question: How can police or prosecutors discern the intention of the citizen they find in possession of illegal drugs?
Simply stated, lawmakers have assigned measurable amounts to legislation governing how little — and, conversely, how much — of a drug constitutes intent to traffic.
This approach is one taken by a minority of countries, including Germany. The reasoning behind a legal threshold is that it can be a useful tool to respond appropriately to various types of offenders, specifically higher-level offenders. The absence of a legal threshold, advocates say, would likely prompt more prosecutorial overcharging or unfairly high sentences. Advocates argue that the clearer parameters help avoid issues for legal thresholds to determine when drug possession or use becomes drug trafficking.
Several imminent questions and counter arguments then arise, among them the possibility that drug users holding large quantities of illegal substances are erroneously assumed to be trafficking, and given unnecessarily high prison sentences.
Additionally, it's possible to make the case that high-level, practising drug traffickers use the transparency of the law to their advantage, keeping their thresholds just below the stated level for trafficking so as to avoid longer sentences if caught.
Innocent until proven guilty?
Many laws operate on the premise that the accused lawbreakers are innocent until the state proves otherwise. Drug trafficking laws are, however, deemed in Australia to be supply laws. As such, the burden of proof shifts onto the defendant — not the prosecutor.
Thus, the onus is on the accused to prove that any drugs they possessed were being held for personal use.
Cultivating with intent?
Particularly when it comes to organic substances such as cannabis or psilocybin — the psychedelic component of so-called "magic mushrooms" — commercial cultivation can be considered in the same vein as drug trafficking.
This is the case whether an individual is found to be planting, transplanting, tending, or harvesting a plant for cultivation. Here too authorities will ask questions about intent in an attempt to determine if the possession of these organic materials is a commercial operation. If it is, the operation is considered criminal and can be prosecuted.
Rife with esoteric issues to debate, a drug trafficking charge is a very serious matter. Maximum penalties include life imprisonment for trafficking, cultivating, or selling commercial quantities of controlled drugs.
If you or someone you care about is charged with drug trafficking, we encourage you to work quickly to secure the services of a criminal lawyer. As delineated above, Queensland courts treat drug trafficking as a serious matter.
Our team of the best criminal defence lawyers has decades of experience in supporting clients across a wide variety of unique situations. Please contact us today to discuss your case.