A person who traffics (deals or trades in) a controlled drug or plant is guilty of an offence. Trafficking can involve a variety of behaviours including selling, preparing, transporting, guarding, concealing or processing a controlled drug. There is cross over between the behaviour that constitutes drug trafficking and other drug related offences (such as importation, manufacturing and possession). While drug importation offences are the most common offences prosecuted by the Commonwealth DPP, they do also prosecute drug trafficking offences (sometimes under the relevant state legislation).

The main trafficking, selling and cultivation offences include:

• Trafficking a commercial, marketable or other quantity of controlled drugs [Criminal Code Act 1995 (Cth) ss 302.2, 302.3, 302.4]
• Cultivating a commercial, marketable or other quantity of controlled plants [Criminal Code Act 1995 (Cth) ss 303.4, 303.5, 303.6]
• Selling a commercial, marketable or other quantity of controlled plants [Criminal Code Act 1995 (Cth) s 304.1, 304.2, 304.3]

The maximum penalties for trafficking controlled drugs are:

• Commercial quantity (usually measured in kilograms): Life imprisonment
• Marketable quantity (usually measured in grams): 25 years’ imprisonment
• Any quantity (i.e., less than a marketable quantity): 10 years’ imprisonment

The maximum penalties for cultivating controlled plants are:

• Commercial quantity (usually measured in kilograms): Life imprisonment
• Marketable quantity (usually measured in grams): 25 years’ imprisonment
• Any quantity (i.e., less than a marketable quantity): 10 years’ imprisonment

The maximum penalties for selling controlled plants are:

• Commercial quantity (usually measured in kilograms): Life imprisonment
• Marketable quantity (usually measured in grams): 25 years’ imprisonment
• Any quantity (i.e., less than a marketable quantity): 10 years’ imprisonment

It may be a defence to the charge that you:

• were under duress;
• have a factual dispute;
• had a lack of intention (e.g., if you can prove you did not have the intention to sell/traffic the controlled plants/drugs (nor did you believe that anyone else was going to do so) this may reduce the charge from a trafficking charge to a possession charge);
• identification dispute; or
• suffer from a mental impairment.

Charges may be downgraded to a lower charge if you can prove that at the time of the alleged offence you were under a mistaken belief about the quantity of the drug/plant [Criminal Code Act 1995 (Cth) ss 313.4].

If you are charged with trafficking a controlled drug, the prosecution must prove that:

• You were trafficking a substance (e.g., you were selling a substance or you were preparing, transporting, guarding, or possessing a substance with the intention of selling);
• You knew the substance was a controlled drug (or you were reckless to think otherwise);
• The quantity of the controlled drug was of a commercial quantity, marketable quantity or some quantity less than a marketable quantity, depending on the charge.

If you are charged with cultivating a controlled plant, the prosecution must prove that:

• You were cultivating a plant (cultivating means to plant a seed, seedling or cutting, to transplant a plant, grow a plant, guard or conceal a plant, or to harvest a plant). Cultivating can include arranging / directing others to cultivate a plant, or to provide money/finance to cultivate a plant.
• You were cultivating the plant for a commercial purpose (i.e., you had the intention of selling it or you knew someone else had the intention to sell it);
• You knew the plant was a controlled plant (or you were reckless to think otherwise);
• The quantity of the controlled plant was of a commercial quantity, marketable quantity or some quantity less than a marketable quantity, depending on the charge.

If you are charged with selling a controlled plant, the prosecution must prove that:

• You sold a plant;
• You knew the plant was a controlled plant (or you were reckless to think otherwise);
• The quantity of the controlled plant was of a commercial quantity, marketable quantity or some quantity less than a marketable quantity, depending on the charge.