7.7.1 - Trafficking in a Drug of Dependence1
7.7.1.1 - Bench Notes
7.7.1 - TRAFFICKING IN A DRUG OF DEPENDENCE ........................................................ 1
7.7.1.1 - Bench Notes ............................................................................................... 1
SECTION 70(1) DEFINITION OF “TRAFFICKING” ............................................................ 3
Preparing a Drug of Dependence for Trafficking ............................................ 3
Agreeing and Offering to Sell a Drug of Dependence................................... 3
Possessing a Drug of Dependence for Sale ...................................................... 4
COMMON LAW DEFINITION OF “TRAFFICKING” ............................................................... 6
Carrying on a Trafficking Business (Giretti Trafficking) ............................... 7
ATTEMPTED TRAFFICKING ................................................................................................. 10
INTENTION TO TRAFFICK IN A DRUG OF DEPENDENCE ................................................. 12
COMMERCIAL AND LARGE COMMERCIAL QUANTITIES ................................................... 14
MIXTURES OF DRUGS ........................................................................................................ 15
DETERMINING QUANTITY .................................................................................................. 16
AGGREGATING QUANTITIES ............................................................................................. 17
INTENTION TO TRAFFICK IN A PARTICULAR QUANTITY ................................................. 18
Giretti Trafficking and Intention to Traffick in a Quantity......................... 19
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This document was last updated on 23 November 2011.
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Commencement Information
1.
The Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the
“Drugs Act”) establishes four trafficking offences, each of which
commenced operation on 1 January 2002:
i)
Section 71 – trafficking in a large commercial quantity of a
drug of dependence;
ii)
Section 71AA – trafficking in a commercial quantity of a
drug of dependence;
iii)
Section 71AB – trafficking in a drug of dependence to a
child;
iv)
Section 71AC – trafficking in a drug of dependence.
2.
Prior to 1 January 2002 there was only one trafficking provision
(s71), which contained the elements of the offence and specified
different penalties depending upon the quantity trafficked. This
created uncertainty about whether there was just one offence with
aggravating circumstances, or a number of distinct offences (see R v
Satalich [2001] VSCA 106). One of the purposes behind the
enactment of the current provisions was to make it clear that there
are a number of distinct trafficking offences (R v Nguyen; DPP
Reference (No 1 of 2004) (Vic) (2005) 12 VR 299).
3.
If a trafficking offence is alleged to have been committed between
dates, one date before and one date on or after 1 January 2002,
then the offence is to be treated as having been committed before
the commencement of the current provisions (Drugs Act s137).
Overview of Elements
4.
For each of the trafficking offences, the prosecution must prove the
following elements beyond reasonable doubt:
i)
That the accused intentionally “trafficked” or “attempted to
traffick” in a particular substance; and
ii)
That it was a “drug of dependence” that the accused
intentionally trafficked or attempted to traffick.
5.
In relation to ss71 and 71AA, the prosecution must also prove that
the accused intentionally trafficked or attempted to traffick in a
quantity of drugs that was not less than a large commercial or
commercial quantity respectively.
6.
In relation to s71AB, the prosecution must prove that the accused
intentionally trafficked or attempted to traffick to a child.
7.
Each of the trafficking provisions exclude from their scope people
who are authorised or licensed to traffick in a drug of dependence.
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Definitions of “Trafficking”
8.
“Trafficking” is defined in s70(1) of the Drugs Act. However, as this
definition is inclusive, it is also possible to rely on the common law
definition of trafficking (R v Giretti (1986) 24 A Crim R 112). Both of
these definitions are addressed in turn below.
9.
Each of the trafficking offences requires the prosecution to prove that
the relevant act of trafficking was intentional (R v Nguyen; DPP
Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005]
VSCA 300).
Section 70(1) Definition of “Trafficking”
10. Section 70(1) of the Drugs Act defines trafficking to include:

Preparing a drug of dependence for trafficking;

Manufacturing a drug of dependence; or

Selling, exchanging, agreeing to sell, offering for sale or having
in possession for sale, a drug of dependence.
11. Although the terms “manufacture” and “sell” are defined in s4 of the
Drugs Act, these definitions do not apply to the trafficking offences
(s70(2)).
Preparing a Drug of Dependence for Trafficking
12. In relation to trafficking by “preparing a drug of dependence for
trafficking”, the prosecution must prove that the accused:

Prepared a drug of dependence;

Intended to prepare that drug; and

Prepared the drug for the purpose of trafficking (R v Giretti
(1986) 24 A Crim R 112).
13. This requires the prosecution to prove that when the accused
prepared the drug, they intended either that the drug would be dealt
with in one of the ways specified in s70(1), or that it would be
trafficked in the manner defined by the common law (see “Common
Law Definition of ‘Trafficking’” below).
Agreeing and Offering to Sell a Drug of Dependence
14. In relation to trafficking by making an “agreement” or “offer” to sell a
drug of dependence under s70(1), the prosecution must prove that
the accused:

Made a genuine agreement or offer to sell a drug of dependence
to another person;
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
Intended to make that agreement or offer; and

Intended the agreement or offer to be regarded as genuine by
the person to whom it was made (R v Peirce [1996] 2 VR 215;
Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R
213 (NSW CCA)).
15. It is not necessary for the prosecution to prove that the accused
actually possessed the relevant drug, intended to complete the sale,
or could ever have supplied the drug to the purchaser (Gauci v
Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW
CCA); R v Peirce [1996] 2 VR 215).
16. It does not matter if the accused intended to provide a different
substance from that which they offered, or to provide nothing at all,
as long as they intended the agreement or offer to be regarded as
genuine by the person to whom it was made (R v Addison (1993) 70
A Crim R 213 (NSW CCA)).
Possessing a Drug of Dependence for Sale
17. In relation to trafficking by “having in possession for sale a drug of
dependence” under s70(1), the prosecution must prove that:

The accused possessed a drug of dependence;

The accused intended to sell that drug (see, e.g., R v FrancisWright (2005) 11 VR 354).
18. The prosecution must prove possession for sale by establishing
possession at common law. Section 5 of the Act, which deems a
person to be in possession of a drug of dependence in specified
circumstances, does not apply to trafficking offences (Momcilovic v R
[2011] HCA 34).
19. At common law, a person has in their possession whatever is, to
their knowledge, physically in their custody or under their physical
control (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157
CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA
120).
20. According to this definition, common law possession of a drug of
dependence has three elements:
1.
The accused had physical custody or control of the drug;
2.
The accused intended to have custody of or exercise control
over the drug; and
3.
The accused knew that the substance over which they had
custody or control was a drug of dependence, or were aware
that it was likely that it was a drug of dependence (R v Maio
[1989] VR 281. See also He Kaw Teh v R (1985) 157 CLR 523;
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Momcilovic v R [2011] HCA 34).
21. A person may have possession of an item even though they are not
carrying the item or do not have it on them, as long as they have
physical custody of or control over the item (R v Maio [1989] VR
281; R v Mateiasevici [1999] VSCA 120).
22. It is not necessary for the prosecution to prove “exclusive
possession”, that is, the right of the accused to exclude everyone
else (other than those with whom s/he was acting in concert) from
interference with the drug. The accused will possess a drug if the
three elements outlined above are satisfied – even if there is a
reasonable possibility that someone else also possessed that drug (R
v Tran [2007] VSCA 164. See also R v Dibb (1991) 52 A Crim R 64
(NSW CCA); R v Cumming (1995) 86 A Crim R 156 (WA CCA) but c.f.
Moors v Burke (1919) 26 CLR 265; Williams v Douglas (1949) 78
CLR 521)).
23. It is not always necessary to define the concept of possession at
common law – the jury need only be told so much of the law as is
necessary for them to know having regard to the issues in the trial
(R v Clarke and Johnstone [1986] VR 643; R v Mateiasevici [1999]
VSCA 120; R v Bandiera and Licastro [1999] VSCA 187; R v Tran
[2007] VSCA 19).
24. A distinction is drawn between possessing a drug for the accused’s
own use and possessing a drug for sale to others. While the former
may provide the basis for a charge of possession of a drug of
dependence (Drugs Act s73), it cannot sustain a charge of trafficking
(R v Kardogeros [1991] 1 VR 269).
25. The prosecution only needs to prove that the accused had a general
intention to sell the drug in the future. It is not necessary to prove
that a particular sale was in contemplation at the material time, or
that the accused had a specific buyer in mind (Reardon v Baker
[1987] VR 887).
26. A drug may be in possession for sale even if the accused intends to
mix it with another substance prior to sale (McNair v Terroni [1915]
1 KB 526; cited with approval by McGarvie J in R v Kardogeros
[1991] 1 VR 269).
27. It may be possible for the jury to infer from the lack of usability of a
portion of drugs possessed that the unusable portion was not
possessed for sale. This may affect the quantity of drugs trafficked
(see “Determining Quantity” below) (R v Coviello (1995) 81 A Crim R
293 (Vic CCA)).
28. A person who cultivates a drug may be guilty of trafficking (as well
as the cultivation offences specified in ss72, 72A and 72B) if it can be
shown that the drug was possessed for sale (R v Bandiera and
Licastro [1999] VSCA 187; R v Kardogeros [1991] 1 VR 269; R v
Stavropoulos and Zamouzaris (1990) 50 A Crim R 315; R v Clarke
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and Johnstone [1986] VR 643. For further information on the
interaction of these offences, see “Trafficking, Cultivation and
Possession” below).
Common Law Definition of “Trafficking”
29. At common law, the term “trafficking” has been held to at least
connote:

An activity performed in a commercial setting (i.e. a setting in
which it can fairly be inferred that someone involved is making
a profit);

Participation by the alleged trafficker in the progress of goods
from source to consumer; and

Contact between the alleged trafficker and at least one other
person (R v Holman [1982] VR 471; Giretti v R (1986) 24 A
Crim R 112).
30. Mere possession of drugs will not be sufficient to constitute
trafficking at common law. A person will not have been involved in
common law trafficking if they were not involved in the onward
movement of the drugs to the ultimate consumer (R v Holman
[1982] VR 471; R v Kloufetos (1985) 14 A Crim R 426 (Vic CCA)).
31. So a person who possessed drugs will not have trafficked at common
law even if it can be inferred that they possessed the drugs for a
commercial purpose and intended to traffick in the future (cf. under
the statutory definition of trafficking: see above). They must have at
least committed an overt act directed towards transferring ownership
or possession of the drugs (R v Holman [1982] VR 471; R v Kloufetos
(1985) 14 A Crim R 426 (Vic CCA)).
32. While it is necessary for there to be contact between the alleged
trafficker and at least one other person, it may be sufficient if it can
be inferred that a person exists who plays the role of the other
person in the movement of the drugs, even if the identity of that
person is unknown (R v Holman [1982] VR 471).
33. Trafficking at common law may involve delivering or selling drugs to
another person, or possibly purchasing or receiving drugs from
another person (R v Holman [1982] VR 471).
34. Bartering, sending or forwarding drugs may also be trafficking at
common law (Giretti v R (1986) 24 A Crim R 112).
35. A voluntary trader acting as a link between parties to a transaction
may still be involved in trafficking at common law, even if they are
acting without reward (Falconer v Pedersen [1974] VR 185).
36. A person need not ever have possessed an item, or held title to it, to
have been involved in trafficking at common law (R v Holman [1982]
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VR 471).
Carrying on a Trafficking Business (Giretti Trafficking)
37. “Trafficking” can be established by proving that the accused
committed an identifiable single act or transaction, such as selling
drugs on a specific occasion. It can also be established by proving
that the accused carried on a drug dealing business over a specified
period of time (Giretti v R (1986) 24 A Crim R 112; R v Lao and
Nguyen (2002) 5 VR 129; Mustica v R [2011] VSCA 79).
38. This latter type of trafficking (sometimes known as Giretti trafficking)
requires the prosecution to prove that the accused was involved in a
continuing trade or business of dealing in drugs, or had engaged on a
regular and commercial basis in the transmission of drugs from
source to consumer (Giretti v R (1986) 24 A Crim R 112; R v Te
[1998] 3 VR 566; R v Lao and Nguyen (2002) 5 VR 129; Mustica v R
[2011] VSCA 79).
39. The expression “trade” or “business” does not connote the existence
of a formal structure or organisation. It is used in a broad sense to
encompass a relatively continuous activity, performed over a
designated period of time, involving commercial dealings in the
prohibited substance (R v Lao and Nguyen (2002) 5 VR 129; Mustica
v R [2011] VSCA 79).
40. A charge of trafficking on a Giretti basis will usually allege that the
accused conducted the business of trafficking between a start date
and an end date. It is open to a jury to conclude that such a business
was being carried on if it finds that the accused was conducting such
a business for a significant part of the period specified (Mustica v R
[2011] VSCA 79).
41. There is no need for the prosecution to prove that there was an
agreement to engage in the business of trafficking. The prosecution
must merely prove that the accused was involved in the trafficking
business over the relevant period (R v Lao and Nguyen (2002) 5 VR
129).
42. It does not matter if the alleged activities were many and varied, and
occurred over a long period of time, as long as they were part of a
“continuing” offence. That is, they must have taken place with the
necessary degree of regularity and system to amount to a business
or trade (Giretti v R (1986) 24 A Crim R 112).
43. It is immaterial whether the accused was a supplier or purchaser of
the drug, so long as their involvement went beyond being merely a
remote and disjunctive commercial seller or buyer. They must have
engaged in the continuous commercial activity of trafficking (R v Lao
and Nguyen (2002) 5 VR 129).
44. The principles set down in Giretti are not limited to businesses that
involve a regular ongoing trade in one particular drug. They also
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apply to businesses in which the accused deals in a diversity of drugs
in the usual and ordinary course of their trade. So if it can be shown,
for example, that the accused had a business which involved selling
both heroin and marijuana on a regular basis, the accused could be
convicted of trafficking in both of these drugs (R v Komljenovic
(2006) A Crim R 298; [2006] VSCA 136).
45. This will be the case even if the accused mainly trafficked in one type
of drug, with other drugs only trafficked occasionally. As long as it
can be shown that all of the sales were part of the same drug dealing
business, and were not isolated sales which were separate from that
business, it does not matter that the frequency and volume of sales
in some drugs greatly exceeded that of others (R v Komljenovic
(2006) A Crim R 298; [2006] VSCA 136).
46. The jury may decide that a particular sale of drugs was separate
from the accused’s usual drug dealing business, and so not part of an
ongoing trade in drugs. However, as drugs are the stock in trade of
drug dealers, any sale of drugs will prima facie be considered to be
part of the accused’s drug business (R v Komljenovic (2006) A Crim
R 298; [2006] VSCA 136).
47. It is possible that an accused who has been in the business of
dealing in a number of different drugs might cease to deal in one of
them, while continuing to deal in others. In such a case, the accused
could no longer be said to be trafficking in the drug which they
stopped selling. However, this will be a question of fact for the jury.
They will need to determine whether an apparent gap in sales in the
drug in question was due to the accused deciding to no longer deal in
that drug, or whether it was due to sales being slow. If the latter,
then the accused would remain liable for trafficking in that drug,
despite the low volume of sales (R v Komljenovic (2006) A Crim R
298; [2006] VSCA 136).
48. The fact that an accused carried on part of their drug trafficking
business on their own account, and part in association with other
dealers, does not prevent all of their drug trafficking transactions
forming part of their drug dealing business. The accused may be
liable for all of the transactions, regardless of whether they were
solely or jointly responsible for a particular transaction (R v
Komljenovic (2006) A Crim R 298; [2006] VSCA 136).
49. Where two accused are joined in a Giretti count of trafficking, it is
not necessary for the prosecution to establish that they had entered
into an agreement or understanding with each other as to their
respective involvements in the business, or were in a joint enterprise
with each other. Nor does the prosecution have to prove that the
parties ever met or communicated with each other, or were aware of
the identity of the other party. It is sufficient if they can prove that
the parties were both engaged in the alleged trafficking business (R v
Lao and Nguyen (2002) 5 VR 129).
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50. Giretti trafficking cannot ordinarily be established by simply proving
that the accused engaged in a number of relevant transactions over
a period of time. A series of isolated sales made over a period of time
does not constitute the continuing activity of trafficking (Giretti v R
(1986) 24 A Crim R 112; R v Komljenovic (1994) 76 A Crim R 521; R
v Hamzy (1994) 74 A Crim R 341 (NSWCCA); R v Lao and Nguyen
(2002) 5 VR 129).
51. So in the absence of an admission by the accused that they were
carrying on a trade or business of dealing in drugs, the jury must be
directed that in order to convict an accused of this type of trafficking,
they must be able to infer from the evidence that the accused was
engaged in such a business (Giretti v R (1986) 24 A Crim R 112; R v
Komljenovic (1994) 76 A Crim R 521; R v Hamzy (1994) 74 A Crim R
341 (NSWCCA); R v Lao and Nguyen (2002) 5 VR 129).
52. Such an inference can be drawn from evidence of a sufficient number
of transactions (e.g. sales and deliveries), together with such other
evidence as will enable the jury to conclude that the accused was
engaged in the disposition or transmission of drugs on a regular and
commercial basis during the period of the alleged offence (Giretti v R
(1986) 24 A Crim R 112).
53. It does not matter if the prosecution relies on just two specific
instances of trafficking, if the evidence enables the jury to draw an
inference that those two acts occurred in the context of a business of
trafficking, and were not simply two distinct offences for which
separate charges should have been laid (Giretti v R (1986) 24 A Crim
R 112; R v Lao and Nguyen (2002) 5 VR 129; R v Komljenovic
(2006) A Crim R 298; [2006] VSCA 136).
54. It is also unimportant that a Giretti count of trafficking will generally
consist of a series of activities or transactions which could each in
themselves be described as acts of trafficking, so long as the jury is
properly directed that these individual transactions are only relevant
to the extent that they provide a basis for drawing an inference that
the accused was engaged in the business of trafficking (unless the
accused is also charged with trafficking by virtue of those individual
transactions as an alternative – see below) (Giretti v R (1986) 24 A
Crim R 112).
55. The jury does not need to unanimously agree that all of the instances
of drug dealing alleged by the prosecution have been proved, or that
any one particular transaction has been proved. The jury only needs
to be unanimous in drawing the inference, from the conduct proved,
that during the relevant period the accused was engaged in the
continuing offence of trafficking (Giretti v R (1986) 24 A Crim R 112;
R v Te [1998] 3 VR 566; R v Lao and Nguyen (2002) 5 VR 129;
Mustica v R [2011] VSCA 79).
56. The jury can draw the requisite inference in different ways, relying
on different facts or circumstances – so long as they are all satisfied
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beyond reasonable doubt that the accused was guilty of the
continuous offence of trafficking over the alleged period (Giretti v R
(1986) 24 A Crim R 112; R v Te [1998] 3 VR 566; R v Lao and
Nguyen (2002) 5 VR 129).
57. It is not necessary for the prosecution to prove that the accused was
trafficking 24 hours a day for the whole of the specified period. They
need only prove that the accused was carrying on the business of
trafficking for some portion of the alleged period (R v Komljenovic
(1994) 76 A Crim R 521; Giretti v R (1986) 24 A Crim R 112; Mustica
v R [2011] VSCA 79).
58. A presentment which contains one count of engaging in a business of
trafficking over a period of time, and a number of alternative counts
specifying particular acts alleged to have taken place during that
period of time, will not be bad for duplicity. In such a case, the jury
should be invited to determine whether they can infer from all of the
evidence (including the specified acts) that the accused was carrying
on a business of trafficking in drugs over the relevant period. If they
can, they should only return a guilty verdict on the Giretti count. If
they cannot draw such an inference, they should then look to see if
the prosecution has proven any of the alternative specific counts (R v
Te [1998] 3 VR 566. See also R v Lao and Nguyen (2002) 5 VR
129).2
Attempted Trafficking
59. Each of the trafficking provisions make it an offence to traffick or
“attempt to traffick” in the specified manner. A person can therefore
be charged with attempted trafficking directly under ss71, 71AA,
71AB or 71AC of the Drugs Act, rather than having to rely on s321M
of the Crimes Act 1958.
60. A person charged with attempted trafficking under one of these
provisions will be subject to the same penalties as a person charged
with trafficking. In contrast, a person who is charged with attempted
trafficking under s321M of the Crimes Act 1958 will be subject to the
lesser penalties set out in s321P of that Act.
61. Section 321N of the Crimes Act 1958 sets out the conduct that will
constitute an attempt. This section applies to a person charged with
attempted trafficking under the provisions of the Drugs Act by virtue
of s321R of the Crimes Act 1958.
62. For more information about attempts see Attempts (Topic not yet
completed).
While the accused may be presented on both a Giretti count of trafficking and
an alternative specific count of trafficking that occurred entirely within the
specified period, he or she should not be convicted of both counts (see, e.g., R v
Doherty [2009] VSCA 93; R v Bidmade [2009] VSCA 90).
2
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Drug of Dependence
63. Each of the trafficking offences requires the accused to have
trafficked in a “drug of dependence”. This term is defined in s4 of the
Drugs Act, to include:

Any form of the drugs specified in Parts 1 and 3 of Schedule
Eleven to the Act, whether natural or synthetic;

The derivatives and isomers of the drugs specified in Parts 1
and 3 of Schedule Eleven to the Act;

The salt of the abovementioned drugs, derivates and isomers;

Any substances that are included in the classes of drugs
specified above; and

The fresh or dried parts of the plants specified in Part 2 of
Schedule Eleven.
64. These substances fall within the definition of a “drug of dependence”
even if they are contained in or mixed with another substance
(except for the plants specified in Part 2 of Schedule Eleven).
65. Unusable portions of a drug (such as the stems, roots and stalks of
the cannabis plant) are still considered to be drugs of dependence,
so long as they fit within the definition specified by s4 (R v Coviello
(1995) 81 A Crim R 293 (Vic CCA)). The usability of a portion of
drugs may, however, affect the question of whether that drug was
possessed for sale (see “Possessing a drug of dependence for sale”
above) as well as the quantity of drug possessed (see “Determining
Quantity” below)).
66. Section 120 of the Drugs Act provides that a certificate purporting to
be signed by an analyst with respect to any analysis or examination
he or she has made shall be sufficient evidence of the identity of the
substance analysed, of the result of the analysis and of the matters
relevant to the proceedings as stated in the certificate. Section 120
also provides that a certificate purporting to be signed by a botanist
shall be sufficient evidence of the identity of the substance
examined. There is no need to provide proof that the person who
signed the certificate is an analyst or botanist, nor to provide proof of
their signature.
67. The provisions in s120 do not apply if the certificate was not served
on the defence at least seven days before the hearing, or if the
defence, at least three days before the hearing, gave notice in
writing to the informant and the analyst or botanist that the analyst
or botanist is required to attend as a witness (s120(2)).
68. The drugs included in Parts 1, 2 and 3 of Schedules Eleven were
recently modified by the Drugs, Poisons and Controlled Substances
(Amendment) Act 2006, with the new provisions commencing
11
operation on 1 May 2007 unless proclaimed earlier.
Intention to Traffick in a Drug of Dependence
69. In addition to proving that the accused trafficked in a drug of
dependence, each of the trafficking offences requires the prosecution
to prove that the accused intended to traffick in a drug of
dependence (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005)
12 VR 299; R v Bui [2005] VSCA 300; see also He Kaw Teh v R
(1985) 157 CLR 523; Momcilovic v R [2011] HCA 34).
70. The prosecution does not need to prove that the accused intended to
traffick in the particular drug in question. They need only prove that
the accused intended to traffick in a drug of dependence (He Kaw
Teh v R (1985) 157 CLR 523).
71. Although this intention may be proved by an admission by the
accused that they intended to traffick in a drug of dependence, in
most cases it will be necessary to infer the requisite intention from
the performance of the proscribed act and the circumstances in
which it was performed (Bahri Kural v R (1987) 162 CLR 502; He
Kaw Teh v R (1985) 157 CLR 523; R v Page [2008] VSCA 540).
72. It will usually be possible to infer an intention to traffick in a drug of
dependence if it can be established that the accused knew of the
existence and nature of the substance at the time that it was
trafficked (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005)
12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R (1987) 162
CLR 502; He Kaw Teh v R (1985) 157 CLR 523).
73. However, the prosecution does not need to prove knowledge of the
existence and nature of the substance. It is possible that the
requisite intent could instead be inferred from a lesser state of mind,
such as:

A belief that it was a drug of dependence that was being
trafficked (R v Nguyen; DPP Reference (No 1 of 2004) (Vic)
(2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R
(1987) 162 CLR 502); or

An awareness of the likelihood that it was a drug of dependence
that was being trafficked (i.e. an awareness that there was a
significant or real chance that their conduct involved trafficking
in a prohibited drug) (R v Nguyen; DPP Reference (No 1 of
2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri
Kural v R (1987) 162 CLR 502; Mustica v R [2011] VSCA 79).
74. In some cases, it may also be possible to infer an intention to traffic
in a drug of dependence from the fact that:

The circumstances were such that the accused’s suspicions that
s/he was trafficking a drug of dependence would have been
aroused; and
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
The accused deliberately failed to make inquiries about the
substance being trafficked, for fear of learning the truth (See,
e.g., R v Garlick (No.2) [2007] VSCA 23; He Kaw Teh v R
(1985) 157 CLR 523; Bahri Kural v R (1987) 162 CLR 502; R v
Crabbe (1985) 156 CLR 464).
75. However, such cases of “wilful blindness” will be rare, and judges
should be cautious before charging the jury about this possibility.
There must be evidence that the accused realised there was a risk
that s/he was trafficking a drug of dependence, and deliberately
chose to close his or her eyes to that risk so that s/he could later
deny knowledge and avoid liability. In the absence of such evidence,
it will be a misdirection to direct the jury about wilful blindness (R v
Garlick (No.2) [2007] VSCA 23).
76. It may be possible for the jury to infer the requisite state of mind
from proof that the accused had custody or control of an object
found to contain drugs, or from proof of the act of trafficking.
However, this will not always be the case (He Kaw Teh v R (1985)
157 CLR 523).
77. While the states of mind outlined above (other than wilful blindness)
will usually support an inference of the requisite intention, this will
not always be the case. A judge should therefore not instruct the jury
that they may convict simply because, for example, the prosecution
established that the accused was aware that there was a significant
or real chance that their conduct involved trafficking in a prohibited
drug (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR
299; R v Bui [2005] VSCA 300; R v Reed [2008] VSCA 20; R v Page
[2008] VSCA 540).
78. The jury should instead be directed that proof that the accused was
aware of the likelihood that it was a drug of dependence that was
being trafficked is capable of sustaining an inference that the
accused intended to traffick in a drug of dependence. At the same
time, the judge should make clear to the jury that it is for them to
determine whether that inference should be drawn, based on all of
the facts and circumstances R v Nguyen; DPP Reference (No 1 of
2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Reed
[2008] VSCA 20; R v Page [2008] VSCA 540).
79. In charging the jury on this issue, judges should follow as nearly as
possible the language used in R v Nguyen; DPP Reference (No 1 of
2004) (Vic) (2005) 12 VR 299. In particular, care must be taken to
ensure that the phrase “is capable of sustaining the inference” is
used whenever reference is made in this context to proof of belief “in
a significant or real chance” (R v Page [2008] VSCA 540).
80. The jury must be instructed that an inference is not to be drawn
unless they are satisfied that it is the only inference that is
reasonably open in the circumstances of the case (R v Nguyen; DPP
Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005]
13
VSCA 300; R v Page [2008] VSCA 540).
81. Where intention is to be proved by inference, the judge should direct
the jury as to any evidence capable of sustaining that inference (R v
Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v
Page [2008] VSCA 540).
82. A judge should not attempt to explain the meaning of the expression
“significant or real chance”, other than to tell the jury that the words
have their ordinary meaning and that it is a question for them to
decide (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12
VR 299).
83. Even though the issue of intent may not be a live issue in a trial, and
may not have been raised by the defence, as it is an element of the
offence a judge is required to direct the jury about it, unless the
defence has conceded that a direction is not required (R v Bui [2005]
VSCA 300).
Quantities
Commercial and Large Commercial Quantities
84. There are two trafficking offences that specify the quantity of drugs
that must be trafficked if an accused is to be found guilty:

Section 71 – trafficking in a “large commercial quantity”; and

Section 71AA – trafficking in a “commercial quantity”.
85. “Large commercial quantity” is defined in s70(1) of the Drugs Act to
mean:

The quantity of drugs, or the number of plants, specified in
column 1A of Parts 2 and 3 of Schedule Eleven to the Act; and

If the drug is contained in or mixed with another substance, the
quantity of mixture specified in column 1B of Part 3 of Schedule
Eleven.
86. “Commercial quantity” is defined in s70(1) of the Drugs Act to mean:

The quantity of drugs, or the number of plants, specified in
column 2 of Parts 1, 2 and 3 of Schedule Eleven; and

If the drug is contained in or mixed with another substance, the
quantity of mixture specified in column 2A of Part 3 of Schedule
Eleven.
87. The trafficking offences specified in ss71AB and 71AC do not require
proof that the accused trafficked in any particular quantity.
88. The quantities of drugs included in Parts 1, 2 and 3 of Schedules
14
Eleven were recently modified by the Drugs, Poisons and Controlled
Substances (Amendment) Act 2006, with the new provisions
commencing operation on 1 May 2007 unless proclaimed earlier.
Mixtures of Drugs
89. The definitions of “commercial” and “large commercial” quantities
draw a distinction between pure quantities and mixed quantities of
drugs, specifying different minimum weights for each in Part 3 of
Schedule Eleven.
90. It has been held that the amounts specified in relation to mixed
quantities of drugs only apply if the drugs in question were actually
mixed with another substance, and the total quantity of that mixture
was not less than the specified amount. If these conditions are not
satisfied, then it is permissible to look at the pure quantity of a drug
that is contained within a mixture (R v Zhu (2000) 2 VR 421).
91. This means, for example, that a 400g mixture containing 300g of
pure heroin will still be a commercial quantity, despite the fact that
the amount of mixture is less than 500g (the requisite amount of
mixture specified in column 2A of Part 3 of Schedule 11). This is
because the amount of pure heroin contained within that mixture is
more than 250g (the requisite amount of a pure drug specified in
column 2 of Part 3 of Schedule 11).
92. Care needs to be taken when drafting the presentment in cases
where it is alleged that the accused trafficked in a mixture containing
two or more drugs of dependence. In such cases, the prosecution
has three options:
3
iii)
They may ascertain the pure quantity of each drug of
dependence contained within the mixture, and present the
accused on individual counts of trafficking in the quantity of
each drug ascertained (with each count relating to one of the
drugs found); or
iv)
They may select just one of the drugs of dependence within the
mixture, and if the quantity of the mixture is a commercial or a
large commercial quantity in relation to the selected drug3,
present the accused on a single count of trafficking in a
commercial or large commercial quantity of that drug; or
v)
They may aggregate the quantity of each drug of dependence
within the mixture (see “Aggregating Quantities” below), and if
the aggregate quantity of those drugs is not less than an
“aggregated commercial quantity” or an “aggregated large
commercial quantity” (as defined in s70), present the accused
on a single count of trafficking in an aggregated commercial or
As ascertained from Columns 2A and 1B of Part 3 of Schedule 11.
15
large commercial quantity (R v Ahmed [2007] VSCA 270 per
Nettle JA).
93. In such a case, the accused must not be charged with (or convicted
of) separate trafficking offences for each of the drugs of dependence
contained within the mixture, using the quantity of the mixture as
the relevant measure (R v Ahmed [2007] VSCA 270).4
Determining Quantity
94. For most drugs of dependence, the relevant quantities are specified
by weight. In determining the weight of a drug, it is appropriate to
make the measurement in light of the conditions existing at the time
that the offence is seen to have been committed (R v Coviello (1995)
81 A Crim R 293 (Vic CCA)).
95. In relation to cannabis, this means that if a crop was “green” at the
relevant time, it is the weight of the drug in such a condition which is
to be measured. The quantity is not what it would be when dried,
even though the drug only becomes usable when in that condition (R
v Coviello (1995) 81 A Crim R 293 (Vic CCA)).
96. The quantity of Cannabis L can be determined either by weight or by
the number of plants (Part 2 of Schedule Eleven). The word “plant”
has been held to be an ordinary English word. Expert evidence about
its meaning is therefore inadmissible (R v Francis-Wright (2005) 11
VR 354).
97. Although the word “plant” is an ordinary English word, the jury
should not be left at large to determine its meaning, because it is
capable of a wide range of interpretations. Where relevant to the
issues in the trial, the judge must tell the jury the meaning of the
word in its statutory context (R v Francis-Wright (2005) 11 VR 354).
For example, if it is alleged that the accused had one 500g mixture, containing
230g of pure heroin, 220g of pure cocaine and 50g of pure methylamphetamine,
the accused must not be charged with 3 counts of trafficking in a commercial
quantity of drugs (one based on having a 500g mixture that contains heroin,
another based on having a 500g mixture that contains cocaine, and a third based
on having a 500g mixture that contains methylamphetamine). Instead, s/he
should either be charged with:
4

Three counts of trafficking in a drug of dependence (one based on having
230g of heroin, the second based on having 220g of cocaine, and the third
based on having 50g of methylamphetamine); or

One count of trafficking in a commercial quantity of either heroin, cocaine
or methylamphetamine (based on having a 500g mixture that contains the
selected drug); or

One count of trafficking in an aggregated commercial quantity of heroin,
cocaine and methylamphetamine.
16
98. For offences committed after 1 May 2007, a “narcotic plant” is
defined as including a cutting of a narcotic plant, whether or not the
cutting has roots. This reverses the common law position that
applied prior to 1 May 2007, which held that a cutting of cannabis
becomes a plant when it develops a root, though it did not need to
be viable. Once a cutting becomes a plant, it continues to be a plant,
even if it dies (Drugs, Poisons and Controlled Substances
(Amendment) Act 2006 s8; R v Francis-Wright (2005) 11 VR 354).
99. In relation to trafficking by “possession for sale” under s70(1), the
relevant quantity is the quantity of drugs possessed for sale, not
simply the quantity of drugs possessed. If it can be shown that a
portion of the drugs possessed by the accused was not for sale, that
portion should not be included when determining the relevant
quantity (R v Coviello (1995) 81 A Crim R 293 (Vic CCA); R v
Francis-Wright (2005) 11 VR 354).
100. It may be possible for the jury to infer from the lack of usability of a
portion of drugs that the unusable portion was not possessed for sale
(see “Possessing a Drug of Dependence for Sale” above). If the jury
finds this to be the case, then the unusable portion of drugs should
not be included in a calculation of the quantity of drugs possessed for
sale. This is a question of fact for determination by the jury based on
all of the relevant evidence (R v Coviello (1995) 81 A Crim R 293 (Vic
CCA. Although an unusable portion of drugs may not be possessed
for sale, it will still be classified as a drug of dependence. See “Drug
of Dependence” above)).
101. Section 120 of the Drugs Act provides that a certificate purporting to
be signed by an analyst or botanist with respect to any analysis or
examination they have made shall be sufficient evidence of the
quantity of the substance analysed or examined. See the section
“Drug of Dependence” above for a more detailed discussion of s120.
Aggregating Quantities
102. Sections 71 and 71AA both state that the specified quantities can be
comprised of “2 or more drugs of dependence”. Similarly, the
definitions of “commercial quantity” and “large commercial quantity”
in s70(1) both include “aggregated” quantities of 2 or more drugs. It
is therefore possible to add together quantities of different drugs
when determining whether the accused has trafficked in the specified
amount.
103. The process for aggregating the quantities of 2 or more drugs of
dependence is set out in the definitions of “aggregated commercial
quantity” and “aggregated large commercial quantity” in s70(1).
These definitions were recently amended by the Drugs, Poisons and
Controlled Substances (Amendment) Act 2006, with the new
definitions commencing operation on 1 May 2007 unless proclaimed
earlier.
17
104. In relation to a Giretti count of trafficking, in some cases it may be
possible for the jury to aggregate a number of small quantities of
drugs sold over a long period of time, to establish that a commercial
or large commercial quantity was trafficked. This will only be
permissible if each sale formed part of the same criminal enterprise
(Giretti v R (1986) 24 A Crim R 112; R v Hamzy (1994) 74 A Crim R
341(NSWCCA); R v Komljenovic (1994) 76 A Crim R 521; R v
McCulloch (2009) 21 VR 340; Le v R [2011] VSCA 42; Mustica v R
[2011] VSCA 79).
105. While in many such cases it is likely to be difficult to establish the
precise quantities sold over time, the jury may examine the
frequency of dealing and the nature of the business conducted,
together with the proceeds of the trade, to assess the quantity sold
over the relevant period (R v Komljenovic (1994) 76 A Crim R 521).
106. The prosecution only needs to establish that not less than the
specified amount was trafficked over the relevant period of time.
They do not need to establish the precise amount trafficked (R v
Komljenovic (1994) 76 A Crim R 521).
107. The jury does not need to unanimously agree that specific
transactions took place. The jury only needs to be unanimous in
concluding, beyond reasonable doubt, that the accused had trafficked
in not less than the specified quantity (Le v R [2011] VSCA 42;
Mustica v R [2011] VSCA 79).
108. If the jury is permitted to add together quantities of drugs sold over
time, the jury should be directed in a way that helps them to avoid
impermissible aggregation. For example, if it is alleged that the
accused possessed drugs for sale and offered those same drugs for
sale, the jury should be directed not to count the same drugs twice
(R v Hamzy (1994) 74 A Crim R 341 (NSWCCA)).
Intention to Traffick in a Particular Quantity
109. Because the offences specified in ss71 (trafficking in a large
commercial quantity) and 71AA (trafficking in a commercial quantity)
are defined by quantities, to convict a person of these offences they
must be shown to have intended to traffick in not less than the
specified quantity of the relevant drug (R v Nguyen; DPP Reference
(No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300;
Mustica v R [2011] VSCA 79).
110. The accused must have had this intention at the time he or she
committed the relevant act of trafficking (Mustica v R [2011] VSCA
79; R v McCulloch (2009) 21 VR 340).
111. It is not sufficient for the prosecution to prove that the accused
intended to traffick in a drug of dependence which in fact weighed
the specified amount, or to traffick in an amount which “might
approximate” the specified quantity. The intention must be to traffick
18
at least the specified quantity (R v Garlick (No.2) [2007] VSCA 23).5
112. This does not mean that the accused must have known what the
legal threshold was, or what the actual weight or number of the
plants cultivated was. The question is whether the accused intended
to cultivate a weight or number of plants that was at least the weight
or number specified in Schedule Eleven of the Drugs Act (R v Garlick
(No.2) [2007] VSCA 23).
113. This intention can be proved in the same way as is explained in the
section “Intention to Traffick in a Drug of Dependence” above. That
is, it can be proved directly or by inferences. An inference can be
drawn from a state of mind that is less than knowledge, such as
proof that the accused was aware that there was a significant or real
chance that the amount of drug trafficked was not less than the
specified quantity (R v Nguyen; DPP Reference (No 1 of 2004) (Vic)
(2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA
540; Mustica v R [2011] VSCA 79).
114. Whether an inference of intention to traffick in not less than the
specified quantity can be drawn is a question of fact for the jury to
determine based on all of the facts and circumstances. Such an
inference should not be drawn if any other inference is reasonably
open (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR
299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA 540).
115. In charging the jury on this issue, judges should follow as nearly as
possible the language used in R v Nguyen; DPP Reference (No 1 of
2004) (Vic) (2005) 12 VR 299. In particular, care must be taken to
ensure that the phrase “is capable of sustaining the inference” is
used whenever reference is made in this context to proof of belief “in
a significant or real chance” (R v Page [2008] VSCA 540).
Giretti Trafficking and Intention to Traffick in a Quantity
116. The need to prove that the accused intended to traffick in not less
than the specified quantity at the time he or she committed the
relevant act of trafficking can create difficulties where the accused is
charged with carrying on a trafficking business (Giretti trafficking).
117. Proof that the accused carried on a business of trafficking can
established by evidence of acts that took place after the accused
formed the intention to traffick in an amount that would exceed the
specified quantity. The prosecution cannot rely on conduct that predates the formation of the relevant intention (Mustica v R [2011]
VSCA 79; R v McCulloch (2009) 21 VR 340; Finn v R [2011] VSCA
273).
While R v Garlick (No.2) [2007] VSCA 23 involved a case of cultivation of a
commercial quantity of a narcotic plant contrary to s72A of the Drugs Act, it is
likely that the same principles apply to trafficking in a drug of dependence.
5
19
118. This intention can be proved directly or by inferences. For example,
an inference can be drawn from proof that, when the accused set up
the trafficking business, he or she was aware that there was a
significant or real chance that the amount trafficked over the
specified period of time would exceed the designated amount
(Mustica v R [2011] VSCA 79).
119. In determining whether the accused had the requisite intention, the
jury may take into account matters such as the frequency of dealings
from the outset, the size of individual dealings, the number of
dealings and the period of time over which the dealings took place
(Mustica v R [2011] VSCA 79).6
120. Due to the difficulties in proving that the accused had this intention
at the outset of the dealings, instead of charging an accused with
Giretti trafficking, it may be desirable to charge the accused with a
number of counts of trafficking simpliciter, selecting the instances
which involve larger quantities (Mustica v R [2011] VSCA 79).
Trafficking to a Child
121. Section 71AB requires the prosecution to prove that the accused
trafficked to a child. “Child” is defined in s70(1) to be person under
the age of 18.
122. Although it has not been determined, it seems likely, following the
principles set down in He Kaw Teh v R (1985) 157 CLR 523, that the
accused must have intended to traffick to a child. This intention can
be proved in the way explained in the section “Intention to Traffick in
a Drug of Dependence” above. For example, the jury could infer this
intention from proof that the accused was aware that there was a
significant or real chance that the person to whom they trafficked
was under the age of 18.
Possession of a “Traffickable Quantity” of Drugs
123. Section 73(2) of the Drugs Act states that where a person has in
their possession not less than a “traffickable quantity” of a drug of
dependence, the fact of possession provides prima facie evidence of
trafficking.
124. “Traffickable quantity” is defined in s70(1) of the Drugs Act to mean:

The quantity of drugs, or the number of plants, specified in
column 3 of Parts 1 and 2 of Schedule Eleven; and
For example, the jury may find from evidence showing that the accused
supplied drugs on a regular basis to a certain person that he or she had a
‘contract’ to do so. If the jury find that this contract existed at the time the
trafficking business was established, they may be able to infer from that fact that,
from the outset, the accused intended to traffick in at least the specified amount.
6
20

The quantity of drugs, including any other substances in which
they are contained or with which they are mixed, specified in
column 3 of Part 3 of Schedule Eleven.7
125. For the purposes of s73(2), “possession” of a traffickable quantity
must be established by proving possession at common law. Section 5
of the Act, which deems the accused to be in possession of a drug in
certain circumstances, does not does not apply to possession for the
purpose of s73(2) (see Momcilovic v R [2011] HCA 34 per French CJ
and Crennan and Kiefel JJ).
126. Different drugs cannot be aggregated to determine whether the
accused has a “traffickable quantity” of drugs under s73(2), as
neither s73(2) nor the definition of “traffickable quantity” provide for
such aggregation.
127. Section 73(2) is not to be read as providing that possession of a
traffickable quantity of a drug of dependence is prima facie evidence
of trafficking in all of the possible ways in which one may traffick
(i.e., all of the ways specified in s70(1)). It is only prima facie
evidence of trafficking in a way which is consistent with the evidence.
So if, for example, the evidence showed that the person did not
manufacture the relevant drug, possession of a traffickable quantity
would not be prima facie evidence of trafficking by manufacturing a
drug of dependence (R v Clarke and Johnstone [1986] VR 643).
128. The fact that the accused is found to be in possession of a
traffickable quantity of a drug of dependence is not conclusive proof
that they were trafficking in that drug – it is merely prima facie
evidence. This means that while the accused can be convicted based
on proof of this fact alone, it is still for the jury to decide, on the
whole of the evidence, whether they are satisfied beyond reasonable
doubt that the accused trafficked in the way alleged (R v Clarke and
Johnstone [1986] VR 643; R v Raiacovici (1993) 70 A Crim R 46; R v
Tran [2007] VSCA 19; Momcilovic v R [2011] HCA 34 per Bell J).
129. The jury should therefore be directed that:

If they are satisfied that the accused possessed a traffickable
quantity of drugs, that would be sufficient in the absence of
evidence to the contrary to convict the accused;

While they can use uncontradicted evidence that the accused
possessed a traffickable quantity of drugs to convict the
accused, they are only entitled to do so if that evidence, either
by itself or in conjunction with other evidence, satisfies them
beyond reasonable doubt that the accused is guilty of
This definition was recently amended by the Drugs, Poisons and Controlled
Substances (Amendment) Act 2006, with the new definition commencing
operation on 1 May 2007 unless proclaimed earlier.
7
21
trafficking; and

They therefore need to look at all of the evidence, including the
fact that the accused possessed a traffickable quantity of drugs,
and consider whether they are satisfied beyond reasonable
doubt that the accused trafficked in the way alleged (e.g. by
having a drug of dependence in possession for sale) (see, e.g.,
R v Stavropoulos and Zamouzaris (1990) 50 A Crim R 315; R v
Tran [2007] VSCA 19).
130. The extent to which it is necessary to elaborate upon the effect of
s73(2) will depend upon the issues in the case. It is not necessary to
explain the way in which s73(2) operates if there is no evidence
suggesting that the drug in question was possessed other than for
trafficking, and it is common ground that it was possessed for this
reason (e.g. if the only issue in the case is whether it was the
accused or another person who possessed the relevant drug) (R v
Clarke and Johnstone [1986] VR 643; R v Tran [2007] VSCA 19).
131. Section 73(2) does not operate to reverse the onus of proof. If the
accused denies that he or she was trafficking, it is for the prosecution
to prove, beyond reasonable doubt, that the accused was trafficking
(R v Clarke and Johnstone [1986] VR 643; Medici v R (1989) 40 A
Crim R 413 (Vic CCA)).
Authorisation and Licensing
132. Each of the trafficking offences specifies that a person will be guilty if
they traffick in the specified manner, “without being authorised by or
licensed under this Act or the regulations to do so”.
133. It has been held that the question of authorisation or licensing is a
matter of “exception” or “qualification” for the purposes of s104 of
the Drugs Act. This section states that the burden of proving any
“matter of exception qualification or defence” lies on the accused. It
is therefore for the accused to prove, on the balance of probabilities,
that they were appropriately authorised or licensed – rather than
being for the prosecution to disprove beyond reasonable doubt (R v
Ibrahim (1987) 27 A Crim R 460; Horman v Bingham [1972] VR 29).
134. Provisions concerning authorisation and licensing are contained in
Divisions 2 and 4 of the Act respectively.
135. Sections 118 and 119 of the Act contain evidentiary provisions that
may be of assistance in cases where there is a dispute about
authorisation or licensing.
Trafficking, Cultivation and Possession
136. A plea in bar is not available unless the elements of two counts are
identical or the elements of one are wholly included in another count
(Pearce v R (1998) 194 CLR 610; R v Sessions [1998] 2 VR 304; R v
22
Lelah [2002] VSCA 96; R v Langdon [2004] VSCA 205).
137. A plea in bar is therefore not available in respect of the trafficking
and cultivation offences (R v Mason [2006] VSCA 55; R v Nguyen
[2006] VSCA 158), nor in relation to trafficking and possession of a
drug of dependence (R v Langdon [2004] VSCA 205; R v Nor (2005)
11 VR 390).
138. However, section 51 of the Interpretation of Legislation 1984 (Vic)
prevents a person from being punished more than once for the
“same act or omission”. So a person should not be punished twice for
the commission of elements that overlap between the different
offences (R v Sessions [1998] 2 VR 304; R v Langdon [2004] VSCA
205; R v Nunno [2008] VSCA 31; R v Filipovic [2008] VSCA 14).
139. If the relevant acts of trafficking, cultivation and/or possession
completely overlap, a conviction should only be recorded in relation
to one of the offences (R v Langdon [2004] VSCA 205; R v Filipovic
[2008] VSCA 14; Grixti v R [2011] VSCA 220).8
140. However, if the relevant acts are merely “linked” rather than
completely overlapping, convictions may be recorded for all counts.
The linking of the acts should be reflected in the sentences imposed,
rather than in the convictions recorded (R v Nunno [2008] VSCA 31).
141. Whether it is appropriate to include trafficking, cultivation and
possession in the presentment, or proceed to verdict and/or
sentencing in relation to each of these offences, will depend on the
circumstances of the case. The judge should consider whether there
is such an overlap in the circumstances of each offence, and the
evidence linking the accused to each of them, that it would be
oppressive to take verdicts, proceed to conviction or impose a
sentence for each (see, e.g., R v Langdon [2004] VSCA 205; R v Nor
(2005) 11 VR 390; R v Nguyen [2006] VSCA 158; R v Nunno [2008]
VSCA 31; Grixti v R [2011] VSCA 220).
This may occur, for example, where the accused is charged with trafficking and
cultivation, and the trafficking charge is based on the fact that the plants were in
the accused’s possession for sale (see, e.g., R v Mason [2006] VSCA 55; R v
Filipovic [2008] VSCA 14).
8
23