Drug Trafficking
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The Trafficking of Dangerous Drugs is considered by the Courts to be one of the most serious charges in Queensland. Accordingly, it carries with it the potential and likely outcome of significant penalties including lengthy terms of actual imprisonment, up to 25 years.
What is a dangerous drug?
There is an extensive list of substances which constitute a dangerous drug in Queensland. These drugs are divided into ‘Schedule 1’ and ‘Schedule 2’ drugs in the Drugs Misuse Regulation 1987. Dependent upon which category a drug is in, it affects the severity of sentence which a person may receive. Schedule 1 contains the most serious illegal drugs, whereas Schedule 2 drugs are less serious.
Some example of each include, but are not limited to:
Schedule 1
- Methylamphetamine
- Heroin
- Cocaine
- Lysergide (LSD)
- 3,4- Methylenedioxymethamphetamine (MDMA)
- Amphetamine
Schedule 2
- Cannabis
- 3, 4-Methylenedioxyamphetamine(MDA)
- Lysergic Acid
- Gamma-hydroxybutyrate (Fantasy)
- Opium
- Oxycodone
Depending upon the Schedule of the relevant drug which has been trafficked, your matter can be dealt with in either the District or Supreme Court. Given the serious nature of a trafficking charge, it is best to discuss your personal circumstances with a Lawyer in order to determine where you stand prior to your Court appearance. Further, depending which Court your matters are ultimately dealt with in, this will affect the potential outcomes of your matter.
What does prosecution need to prove?
For a charge of trafficking a dangerous drug, it is not necessary that the Prosecutions confiscate the dangerous drugs which are alleged to have been trafficked. Rather, it is often that Prosecutions rely upon other evidence, such as phone calls, text messages and witness accounts, to show that drugs have exchanged hands in exchange for profit or trade.
Prosecutions must show to the Court that a business is being run unlawfully, that involves the sale (although it can also include the trading or dealing more generally) of a prohibited substance. Whilst it is necessary that Prosecutions can show that you were in the “business” of trafficking, it is enough to satisfy this criteria, even if you only sold drugs once.
What type of evidence can be used against me?
In charging a person with trafficking, a variety of evidence can be used by Prosecutions to show that you have engaged in the business of trafficking dangerous drugs. Commonly, evidence is taken from a person’s own mobile device to show that a series of supplies either did take place or were arranged to take place in exchange for profit.
When approached by Police with a search warrant for your mobile or electronic device, you are legally obliged to provide them with the device. Should that search warrant also include the condition that you give your passcode to Police for this device, then you are also legally obliged to provide as such. Not doing so when Police have a valid search warrant constitutes a criminal offence and can result in serious consequences, including imprisonment. The consequences of failing to comply with a search warrant are often direr than what a person could have been liable for should the phone and password have been provided to Police and the resultant charges dealt with.
When Police take your device which is subject to a search warrant, they can hold the device for a maximum of 28 days by which time either, the device must be returned, or charges must be laid against a person. If the device is found to be connected with the commission of a crime, it is likely that at the conclusion of the matter the Court will order the device be forfeited. In these circumstances, charges do not necessarily need to be laid against the owner of the phone. For example, if another person used your phone in the act of trafficking a dangerous drug and this was identifiable by the Police, that person may be charged with the trafficking however, your phone could still be forfeited to the Crown at the end of Court proceedings against the other person. Should you find yourself in this situation, we advise you to seek legal advice to determine whether the forfeiture of the device can be fought in Court.
What type of evidence can be used against me?
In charging a person with trafficking, a variety of evidence can be used by Prosecutions to show that you have engaged in the business of trafficking dangerous drugs. Commonly, evidence is taken from a person’s own mobile device to show that a series of supplies either did take place or were arranged to take place in exchange for profit.
When approached by Police with a search warrant for your mobile or electronic device, you are legally obliged to provide them with the device. Should that search warrant also include the condition that you give your passcode to Police for this device, then you are also legally obliged to provide as such. Not doing so when Police have a valid search warrant constitutes a criminal offence and can result in serious consequences, including imprisonment. The consequences of failing to comply with a search warrant are often direr than what a person could have been liable for should the phone and password have been provided to Police and the resultant charges dealt with.
When Police take your device which is subject to a search warrant, they can hold the device for a maximum of 28 days by which time either, the device must be returned, or charges must be laid against a person. If the device is found to be connected with the commission of a crime, it is likely that at the conclusion of the matter the Court will order the device be forfeited. In these circumstances, charges do not necessarily need to be laid against the owner of the phone. For example, if another person used your phone in the act of trafficking a dangerous drug and this was identifiable by the Police, that person may be charged with the trafficking however, your phone could still be forfeited to the Crown at the end of Court proceedings against the other person. Should you find yourself in this situation, we advise you to seek legal advice to determine whether the forfeiture of the device can be fought in Court.
Defences
There are defences available to those charged with trafficking a dangerous drug, though they are only usually available in limited circumstances. Mistake of fact, where the parties to a transaction, genuinely and reasonably believed that the substance was not in fact a dangerous drug, but rather, another lawful substance, may be argued in the appropriate circumstances to alleviate criminal liability. Further, if it can be shown that the drug was not a dangerous drug, or that you did so involuntarily because you were under duress at the time, these may also be relevant defences to a charge of trafficking.
Should you be unsure whether your circumstances constitute a defence to the charge of trafficking a dangerous drug, we advise that you seek legal advice as soon as possible so that your defence is given the best possible chance from the moment you are questioned or charged.
Sentencing Outcomes
There are serious maximum penalties including a likely period of actual imprisonment, charges of trafficking dangerous drugs. The maximum penalty for drug trafficking can include up to 25 years imprisonment for the more ‘serious’ trafficking of Schedule 1 drugs, and up to 20 years imprisonment for the less ‘serious’ trafficking of Schedule 2 drugs. Where your personal sentencing outcome may stand upon this scale is dependent upon a variety of factors and aggravations. For example, a person who trafficked a Schedule 1 drug on two separate occasions in an opportunistic manner, when they did not have money for day to day expenses, compared with a person who also trafficked a Schedule 1 drug but consistently over a 8 month period as a part of an organised crime group, would receive vastly differing sentences.
Due to these varying circumstances, it is our advice that you retain the services of a lawyer who can have discussions on your behalf with the Director of Public Prosecutions and assist you to obtain the right materials prior to sentence to put you in the best possible position when appearing before the Court. Having representation from the start of your process through the Courts, will give you the best possible chance of minimising the sentence which you otherwise could have received. Knowing all your options, including the worst-case scenario and which avenues you have available to defend the charge completely or to minimise the penalties you otherwise would have received, puts you in the best position to continue your life after facing criminal charges.