Sentencing Snapshot 244: Sentencing Trends for Trafficking in a Commercial Quantity of Drugs in the Higher Courts of Victoria 2014-15 to 2018-19

Date of Publication

Sentencing Snapshot no. 244 describes sentencing outcomes for the offence of trafficking in a commercial quantity of drugs in the County and Supreme Courts of Victoria from 2014-15 to 2018-19.

This is the most recent Snapshot for this offence.

You can also access statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2020

Snapshot 244: Trafficking in a Commercial Quantity of Drugs

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of trafficking in a commercial quantity of drugs[2] in the County and Supreme Courts of Victoria (the higher courts) from 2014-15 to 2018-19.[3] Adjustments made by the Court of Appeal to sentence or conviction as at June 2019 have been incorporated into the data in this Snapshot.[4]

Detailed data on trafficking in a commercial quantity of drugs and other offences is available on Sentencing Advisory Council Statistics (SACStat).

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides for a set of trafficking offences that distinguishes between large commercial, commercial and less than commercial quantities of illicit drugs.[5]

A person who prepares, manufactures, sells, exchanges, agrees to sell, offers for sale or has in their possession for sale a drug of dependence without being authorised or licensed to do so is guilty of trafficking in a drug of dependence.[6] The maximum penalties that apply vary depending on the nature and quantity of the drug involved, as well as the age of the recipient of the drugs, with higher maximum penalties for supplying to persons aged under 18 years.[7]

This report examines the offence of trafficking in a commercial quantity of a drug (or drugs) of dependence to an adult.[8] The amount of the drug that constitutes a commercial quantity depends on the type of drug involved.[9] Different types of drugs can be combined in order to achieve a commercial quantity.[10]

Trafficking in a commercial quantity of drugs is an indictable offence that carries a maximum penalty of 25 years’ imprisonment and/or a fine of up to 3,000 penalty units.[11] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Trafficking in a commercial quantity of drugs is a Category 2 offence, which means that a court cannot impose a non-custodial sentence except in particular circumstances.[12]

This Snapshot focuses on cases where trafficking in a commercial quantity of drugs was the principal offence, that is, cases where trafficking in a commercial quantity of drugs was the offence that received the most severe sentence.[13]

Trafficking in a commercial quantity of drugs was the principal offence in 2.2% of cases sentenced in the higher courts between 2014-15 and 2018-19.

People sentenced

From 2014-15 to 2018-19, 201 people were sentenced in the higher courts for a principal offence of trafficking in a commercial quantity of drugs.

Figure 1 shows the number of people sentenced for the principal offence of trafficking in a commercial quantity of drugs by financial year. There were 55 people sentenced for this offence in 2018-19, up by 24 people from the previous year. The number of people sentenced was highest in 2018-19 (55 people) and lowest in 2017-18 (31 people).

Figure 1: The number of people sentenced for trafficking in a commercial quantity of drugs by financial year

Financial year Total
2014-15 35
2015-16 40
2016-17 40
2017-18 31
2018-19 55
Total 201

Sentence types and trends

Figure 2 shows the proportion of people who received an immediate custodial sentence and non-custodial sentence for the principal offence of trafficking in a commercial quantity of drugs.

An immediate custodial sentence involves at least some element of immediate imprisonment or detention.[14] Over the five-year period, 93.5% of people were given an immediate custodial sentence. The highest proportion of custodial sentences was handed down in 2015-16 (100%) and the lowest in 2017-18 (87.1%). The proportion of people who received an immediate custodial sentence in 2018-19 was 92.7%, up by 5.6% from the previous year.

Figure 2: The percentage of people who received an immediate custodial sentence and non-custodial sentence for trafficking in a commercial quantity of drugs by financial year

Financial year Immediate custodial sentence People sentenced Immediate custodial sentence Non-custodial sentence
2014-15 34 35 97.1% 2.9%
2015-16 40 40 100.0% 0.0%
2016-17 36 40 90.0% 10.0%
2017-18 27 31 87.1% 12.9%
2018-19 51 55 92.7% 7.3%
Total 188 201 93.5% 6.5%

Table 1 shows the number of people sentenced for trafficking in a commercial quantity of drugs from 2014-15 to 2018-19 by the most serious type of sentence imposed.[15] The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished.[16] Changes to community correction orders have also influenced the sentencing trends over the five years covered by this Snapshot.[17]

Over the five-year period, the majority of people sentenced for trafficking in a commercial quantity of drugs received a principal sentence of imprisonment (93.0% or 187 of 201 people). The principal sentence is the sentence imposed for the charge that is the principal offence. The proportion of imprisonment sentences decreased slightly over the five years, from 97.1% of overall sentences in 2014-15 to 92.7% in 2018-19.

Table 1: The number and percentage of people sentenced for trafficking in a commercial quantity of drugs by most serious principal sentence type and financial year

Sentence type 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 34 (97.1%) 39 (97.5%) 36 (90.0%) 27 (87.1%) 51 (92.7%) 187 (93.0%)
Community correction order 1 (2.9%) 0 (0.0%) 4 (10.0%) 4 (12.9%) 4 (7.3%) 13 (6.5%)
Youth justice centre order 0 (0.0%) 1 (2.5%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (0.5%)
Total people sentenced 35 40 40 31 55 201

Principal and total effective sentences

The principal sentence describes sentences for the offence at a charge level (as described in the previous section). The total effective sentence describes sentences at a case level.

The total effective sentence in a case with a single charge is the principal sentence. The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other).

Where a case involves multiple charges, the total effective sentence imposed on a person is sometimes longer than the principal sentence. Principal sentences for trafficking in a commercial quantity of drugs must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of trafficking in a commercial quantity of drugs from 2014-15 to 2018-19.

Principal sentence of imprisonment

Table 2 shows that a total of 187 people received a principal sentence of imprisonment for trafficking in a commercial quantity of drugs. Of these, 176 people received a non-aggregate term of imprisonment and 11 people received an aggregate term. There were 24 people who received a community correction order in addition to their term of imprisonment.

Table 2: The number and percentage of people sentenced to imprisonment for trafficking in a commercial quantity of drugs by sentence type and financial year

Type of imprisonment sentence 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 27 (79.4%) 35 (89.7%) 26 (72.2%) 21 (77.8%) 46 (90.2%) 155 (82.9%)
Imprisonment and community correction order (combined) 5 (14.7%) 4 (10.3%) 5 (13.9%) 5 (18.5%) 2 (3.9%) 21 (11.2%)
Total non-aggregate imprisonment 32 (94.1%) 39 (100.0%) 31 (86.1%) 26 (96.3%) 48 (94.1%) 176 (94.1%)
Aggregate imprisonment 2 (5.9%) 0 (0.0%) 2 (5.6%) 1 (3.7%) 3 (5.9%) 8 (4.3%)
Aggregate imprisonment and community correction order (combined) 0 (0.0%) 0 (0.0%) 3 (8.3%) 0 (0.0%) 0 (0.0%) 3 (1.6%)
Total aggregate imprisonment 2 (5.9%) 0 (0.0%) 5 (13.9%) 1 (3.7%) 3 (5.9%) 11 (5.9%)
Total people sentenced to imprisonment 34 39 36 27 51 187

Figure 3 shows the length of imprisonment for the people who received a non-aggregate term.[18] Imprisonment terms ranged from 1 month and 3 days (combined with a community correction order) to 11 years, while the median length of imprisonment was 4 years (meaning that half of the imprisonment terms were below 4 years and half were above).

The most common range of imprisonment term lengths was 4 to less than 5 years (56 people).

Figure 3: The number of people sentenced to imprisonment for trafficking in a commercial quantity of drugs by length of imprisonment term, 2014-15 to 2018-19

Imprisonment length Number of people
Less than 1 year 11
1 to less than 2 years 23
2 to less than 3 years 8
3 to less than 4 years 38
4 to less than 5 years 56
5 to less than 6 years 27
6 to less than 7 years 5
7 to less than 8 years 3
8 to less than 9 years 3
9 to less than 10 years 0
10 to less than 11 years 1
11 to less than 12 years 1
Total people sentenced 176

As shown in Figure 4, the average length of imprisonment imposed on people sentenced for trafficking in a commercial quantity of drugs ranged from 3 years and 2 months in 2017-18 to 4 years and 2 months in 2018-19. Over the five years, the average length of imprisonment for trafficking in a commercial quantity of drugs was 3 years and 9 months.

Figure 4: The average length of imprisonment imposed on people sentenced for trafficking in a commercial quantity of drugs by financial year

Financial year Number of people Average length of imprisonment term
2014-15 32 3 years and 4 months
2015-16 39 4 years and 0 months
2016-17 31 3 years and 5 months
2017-18 26 3 years and 2 months
2018-19 48 4 years and 2 months
Total 176 3 years and 9 months

Other offences finalised at the same hearing

Sometimes people prosecuted for trafficking in a commercial quantity of drugs face multiple charges, which are finalised at the same hearing. This section looks at the range of offences that offenders were sentenced for alongside the principal offence of trafficking in a commercial quantity of drugs. The section includes data on all people sentenced for a principal offence of trafficking in a commercial quantity of drugs, not just those who received imprisonment.

Figure 5 shows the number of people sentenced for the principal offence of trafficking in a commercial quantity of drugs by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 26, while the median was 4 offences. There were 38 people (18.9%) sentenced for the single offence of trafficking in a commercial quantity of drugs. The average number of offences per person was 5.2.

Figure 5: The number of people sentenced for the principal offence of trafficking in a commercial quantity of drugs by the number of sentenced offences per person, 2014-15 to 2018-19

Number of offences Number of people
1 38
2 30
3 25
4 15
5-9 68
10-19 21
20+ 4
Total 201

Table 3 shows the 10 most common offences, by number and percentage, for people sentenced for trafficking in a commercial quantity of drugs. The last column sets out the average number of offences sentenced per person. For example, 91 of the total 201 people (45.3%) also received sentences for trafficking in a non-commercial quantity of a drug of dependence. On average, they were sentenced for 1.8 counts of trafficking in a non-commercial quantity of a drug of dependence.

Table 3: The number and percentage of people sentenced for the principal offence of trafficking in a commercial quantity of drugs by the most common offences that were sentenced and the average number of those offences that were sentenced, 2014-15 to 2018-19

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Trafficking in a commercial quantity of a drug of dependence 201 100.0% 1.1
2. Trafficking in a non-commercial quantity of a drug of dependence 91 45.3% 1.8
3. Possess a drug of dependence 76 37.8% 2.24
4. Dealing with property suspected of being proceeds of crime 58 28.9% 1.34
5. Possess, carry or use a prohibited weapon (other than an imitation firearm) 42 20.9% 1.24
6. Possess cartridge ammunition without licence or permit 27 13.4% 1.04
7. Commit indictable offence while on bail 22 10.9% 1.23
8. Negligently deal with proceeds of crime 19 9.5% 1.47
9. Prohibited person possess, carry or use a firearm 17 8.5% 1.76
10. Theft (undefined) 13 6.5% 1.15
People sentenced 201 100.0% 5.2

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for trafficking in a commercial quantity of drugs by length of total effective imprisonment term. The total effective imprisonment terms ranged from 1 month and 3 days (combined with a community correction order) to 14 years, while the median total effective imprisonment term was 4 years and 4 months (meaning that half of the total effective imprisonment terms were below 4 years and 4 months and half were above).

The most common range of total effective imprisonment terms was 4 to less than 5 years (45 people).

Figure 6: The number of people sentenced to imprisonment for trafficking in a commercial quantity of drugs by length of total effective imprisonment term, 2014-15 to 2018-19

Total effective imprisonment length Number of people
Less than 1 year 13
1 to less than 2 years 24
2 to less than 3 years 6
3 to less than 4 years 26
4 to less than 5 years 45
5 to less than 6 years 36
6 to less than 7 years 18
7 to less than 8 years 9
8 to less than 9 years 4
9 to less than 10 years 2
10 to less than 11 years 2
11 to less than 12 years 0
12 to less than 13 years 1
13 to less than 14 years 0
14 to less than 15 years 1
Total people sentenced 187

Non-parole period

If a person is sentenced to a term of immediate imprisonment of less than 1 year, the court cannot impose a non-parole period. For terms between 1 year and less than 2 years, the court has the discretion to fix a non-parole period. For terms of imprisonment of 2 years or more, the court must impose a non-parole period in most circumstances. If the court fixes a non-parole period, the person must serve that period before becoming eligible for parole. If the court does not set a non-parole period, the person must serve the entirety of their imprisonment term in custody.

Of the 187 people who were sentenced to imprisonment for trafficking in a commercial quantity of drugs, 13 were not eligible for parole because their total effective sentence was less than one year. Of the 174 people who were eligible to have a non-parole period fixed, 154 were given a non-parole period (88.5%).

Figure 7 shows the number of people sentenced to imprisonment for trafficking in a commercial quantity of drugs, by length of non-parole period. Non-parole periods ranged from 6 months to 10 years, while the median non-parole period was 2 years and 9 months (meaning that half of the non-parole periods were below 2 years and 9 months and half were above). There were 33 people sentenced to imprisonment for trafficking in a commercial quantity of drugs who did not have a non-parole period imposed.[19]

The most common range for non-parole periods was 2 to less than 3 years (52 people).

Note that it was not possible to determine the length of the non-parole period for 1 person.[20]

Figure 7: The number of people sentenced to imprisonment for trafficking in a commercial quantity of drugs by length of non-parole period, 2014-15 to 2018-19

Non-parole period Number of people
Less than 1 year 5
1 to less than 2 years 23
2 to less than 3 years 52
3 to less than 4 years 39
4 to less than 5 years 22
5 to less than 6 years 5
6 to less than 7 years 3
7 to less than 8 years 1
8 to less than 9 years 2
9 to less than 10 years 0
10 to less than 11 years 1
Undetermined 1
No non-parole period 33
Total people 187

Total effective sentences of imprisonment and non-parole periods

Figure 8 represents the 153 people who were sentenced to imprisonment for trafficking in a commercial quantity of drugs and for whom the non-parole period could be determined. Figure 8 compares the average length of total effective sentences with the average length of non-parole periods for these people by financial year.[21]

From 2014-15 to 2018-19, the average length of total effective sentences ranged from 4 years and 3 months in 2014-15 to 5 years and 6 months in 2018-19. Over the same period, the average length of non-parole periods ranged from 2 years and 7 months in 2014-15 to 3 years and 3 months in 2018-19.

Figure 8: The average total effective sentence length and the average non-parole period for people sentenced to imprisonment with a non-parole period for trafficking in a commercial quantity of drugs by financial year

Financial year Average total effective sentence length Average non-parole period
2014-15 4 years and 3 months 2 years and 7 months
2015-16 4 years and 10 months 3 years and 0 months
2016-17 4 years and 6 months 2 years and 8 months
2017-18 5 years and 2 months 3 years and 1 month
2018-19 5 years and 6 months 3 years and 3 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for trafficking in a commercial quantity of drugs is available on SACStat.

Summary

From 2014-15 to 2018-19, 201 people were sentenced for trafficking in a commercial quantity of drugs in the higher courts. Of these people, 187 (93.0%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of trafficking in a commercial quantity of drugs were sentenced help explain why imprisonment sentence lengths were longer for the total effective sentence than for the principal sentence. The median total effective imprisonment length was 4 years and 4 months, while the median principal imprisonment length was 4 years.

Total effective imprisonment lengths ranged from 1 month and 3 days (combined with a community correction order) to 14 years, and non-parole periods (where imposed) ranged from 6 months to 10 years.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 219, which describes sentencing trends for trafficking in a commercial quantity of drugs between 2012-13 and 2016-17.

2. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA.

3. Data on first-instance sentence outcomes presented in this Snapshot was obtained from the Strategic Analysis and Review Team at Court Services Victoria. Data on appeal outcomes was collected by the Sentencing Advisory Council from the Australasian Legal Information Institute, and was also provided by the Victorian Court of Appeal. The Sentencing Advisory Council regularly undertakes extensive quality control measures for current and historical data. While every effort is made to ensure that the data analysed in this report is accurate, the data is subject to revision.

4. In June 2017, the Court of Appeal held that there was a need to uplift sentencing practices for trafficking in both a commercial and a large commercial quantity of drugs: Gregory (A Pseudonym) v The Queen [2017] VSCA 151. Further, in October 2017, the High Court held that where current sentencing practices are shown to be inadequate the courts should change their practices immediately, not incrementally: Dalgliesh (A Pseudonym) v The Queen [2017] HCA 41.

Although both of these judgments occurred partway through the reference period in this Snapshot, they may have resulted in considerable changes to sentencing practices for cases sentenced subsequently.

5. Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71-71AC.

6. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.

7. The sentencing database used for this analysis was compiled using conviction returns. Due to incomplete offence information regarding drug trafficking offences on the conviction returns, a further classification exercise was undertaken to determine the specific offence types. This involved reading the sentencing remarks of the particular cases and determining if the quantity of the drug was non-commercial, commercial or large commercial. In total, there were 579 cases that had drug trafficking (section 71, 71AA, 71AB or 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)) as the principal offence over the five-year period from 2014-15 to 2018-19. Sentencing remarks were located for 536 cases (91.7%). The drug quantities for all these cases were checked and coded into the appropriate category. The remaining cases had sentences that were all within the statutory maximum penalty for the offence and were therefore assumed to have been recorded correctly in the first instance.

8. Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71AA-71AB.

9. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.

10. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70 (definition of aggregate commercial quantity).

11. The value of a penalty unit changes each year and can be found in the Victorian Government Gazette and on the Victorian Legislation and Parliamentary Documents website.

12. Sentencing Act 1991 (Vic) ss 5(2H)-(2I).

13. If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.

14. For the principal offence of trafficking in a commercial quantity of drugs, an immediate custodial sentence included imprisonment, imprisonment combined with a community correction order, aggregate imprisonment, aggregate imprisonment combined with a community correction order and a youth justice centre order.

15. For example, if the principal offence has a sentence that includes imprisonment combined with a community correction order, imprisonment is the most serious sentence type.

16. Suspended sentences have been abolished in the higher courts for all offences committed on or after 1 September 2013 and in the Magistrates’ Court for all offences committed on or after 1 September 2014.

17. For example, initially the maximum term of imprisonment that could be combined with a community correction order was set at 3 months, but it was increased to 2 years in September 2014 and reduced to 1 year in March 2017.

18. Data presented in this section does not include imprisonment lengths for people who received an aggregate sentence of imprisonment. Figures 3 and 4 only report on non-aggregate sentences of imprisonment for the principal offence of trafficking in a commercial quantity of drugs.

19. The 33 people sentenced to imprisonment with no non-parole period consisted of 13 people who were not eligible for parole and 20 people who were eligible but were not given a non-parole period with their sentence.

20. One person was given a non-parole period that related to more than one case. It was not possible to separately determine the length of the non-parole periods that related to each individual case.

21. Figure 8 only includes cases where the total effective sentence is an imprisonment term and a non-parole period is applied. This means cases with imprisonment combined with a community correction order (which do not receive a non-parole period) are excluded from Figure 8.