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Marketable Drug Trafficking

Marketable Drug Trafficking is an offence under Section 302.3 of the Criminal Code Act 1995 which carries a maximum penalty of 25 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You intentionally trafficked a substance
  2. The substance was a marketable quantity of a controlled drug, and
  3. You knew, or were reckless as to whether, the substance was a controlled drug

‘Traffic’ means:

  1. To sell the substance
  2. To prepare it for supply with the intention of selling any of it or believing another person intended to sell any of it
  3. To transport it with the intention of selling any of it or believing another person intended to sell any of it
  4. To guard or conceal it with the intention of selling any of it or assisting any person to sell any of it, o
  5. To possess it with the intention of selling any of it

‘Prepare’ includes to package or separate the substance.

You intentionally trafficked a substance for the purpose of sale If you prepared, transported, guarded, concealed or possessed a trafficable quantity of it unless you are able to prove ‘on the balance of probabilities’ that you did not intend for the substance to be sold or believe it would be sold.

You were ‘reckless’ if you were aware it was likely that the substance was a controlled drug but went ahead with your actions regardless.

Examples of a ‘commercial quantity’ include:

  • At least 100 grams but less than 500 grams of MDMA (or ecstasy)
  • At least 250 grams but less than 750 grams of amphetamines
  • At least 250 grams but less than 1.5 kgs of heroin
  • At least 250 grams but less than 2 kgs of cocaine, and
  • At least 25 kgs but less than 125 kgs of cannabis

A defence to the charge is ‘duress’, which is where:

  1. Your actions resulted from a threat of death or serious injury to you and/or a family member
  2. There was no reasonable way for you to render the threat ineffective, and
  3. Your conduct was a reasonable response to the threat

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