Drug Trafficking SA: Penalties, Quantities and the Presumption of Sale
Drug trafficking in South Australia
A drug trafficking charge can carry a long prison term, and a conviction for trafficking a commercial quantity forfeits almost everything the offender owns. Talon Legal defends trafficking charges from a few deal bags to large commercial quantities, in the Magistrates, District and Supreme Courts. Book a same-day free 30-minute consultation or call (08) 7094 2021 now.
Drug trafficking key facts
| Issue | Position in South Australia |
|---|---|
| Governing law | Section 32 of the Controlled Substances Act 1984 (SA), version in force from 1 July 2026. Quantities are set by the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), version in force from 27 June 2024. |
| What trafficking means | Selling a controlled drug, having possession of it intending to sell it, or taking part in the process of its sale (section 4). |
| Three quantity tiers | Any quantity (section 32(3)), a commercial quantity (section 32(2)) and a large commercial quantity (section 32(1)). |
| Maximum penalties | For a person who is not a serious drug offender: $50,000 or 10 years for any quantity, $200,000 or 25 years for a commercial quantity, and $1,000,000 or life for a large commercial quantity. |
| Serious drug offenders | Higher maximums apply to a person with the prior drug convictions the Act describes: for example, $75,000 or 15 years for any quantity (section 32(3)). |
| The presumption | Once possession of a trafficable quantity is proved, the drug is presumed to have been held for sale in the absence of proof to the contrary (section 32(5)). |
| Trafficable quantity | 2 grams for methylamphetamine, amphetamine, MDMA, cocaine and heroin. 6 grams for ketamine. 50 grams for GHB. |
| Sentencing standard | Four to seven years for street-level traffickers motivated to a greater or lesser extent by profit, per the majority in R v Young (2016). |
| Property | A conviction for trafficking a commercial or large commercial quantity makes the offender a prescribed drug offender, and their property is forfeited (Criminal Assets Confiscation Act 2005 (SA), sections 6A and 56A). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Charged with drug trafficking? What the offence is
Section 32 of the Controlled Substances Act 1984 (SA) makes it an offence to traffic in a controlled drug. This guide sets out drug trafficking SA law: what the prosecution must prove, the quantity tiers, the presumption that arises from a trafficable quantity, the penalties and how courts sentence. It states the law current to 5 November 2026.
The Drug Offences SA guide explains how the drug charges fit together. Where the charge is possession only, see drug possession. Where drugs were being made, see manufacturing drugs and precursors. Cannabis trafficking is covered on the cannabis offences pages, including cannabis trafficable quantities.
Free Consultation. Police often seize phones, cash and cars on the day of the arrest. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What counts as drug trafficking?
- Is giving drugs to a friend trafficking?
- What quantities apply?
- How does the presumption of sale work?
- What else must the prosecution prove?
- What is the penalty for drug trafficking?
- How do courts sentence drug trafficking?
- What happens to cash, cars and homes?
- How similar cases tend to play out
- How we defend a drug trafficking charge
- Drug trafficking case law
- Frequently asked questions
What counts as drug trafficking?
Section 4 of the Act gives trafficking three forms: selling a controlled drug, having possession of it intending to sell it, and taking part in the process of its sale. A person can be guilty without ever completing a sale.
Selling is defined widely. It includes bartering or exchanging, offering or agreeing to sell, and exposing a drug for sale (section 4). An offer is enough, even if no drug changes hands.
A person takes part in the process of sale if they direct, take or participate in any step in that process, or cause a step to be taken (section 4(4)). When done for the purpose of sale, the steps include these (section 4(5)):
| Step | Example |
|---|---|
| Storing | Keeping a supplier's stock at home |
| Carrying, transporting, loading or unloading | Driving a parcel from one dealer to another |
| Packaging, separating into units or preparing | Dividing a bulk amount into deal bags |
| Guarding or concealing | Hiding drugs for someone who is selling them |
| Providing or arranging finance | Paying for the next purchase |
| Providing or allowing the use of premises, or jointly occupying premises | Letting a dealer work from a house |
The words “for the purpose of sale” matter. In Kingston (a pseudonym) v The Queen [2022] SASCA 90, a case of attempted trafficking, the Court of Appeal concluded that the jury had been wrongly told it was enough for the accused to take steps while reckless about whether the drug would be sold. The ordinary presumption is that a statutory offence requires an intention to do the prohibited conduct ([39]). The appeals were allowed on a different ground.
Is giving drugs to a friend trafficking?
Giving a drug away, with nothing in return, is supply rather than trafficking. Supply means providing or distributing, or offering to provide or distribute (section 4). It is a separate offence under section 33I.
If money or anything else is given in return, the transaction can be a sale, because selling includes bartering and exchanging (section 4). The line between supply and sale is often where the defence work starts.
The penalties for supply are lower than for trafficking but still serious:
| Offence | Maximum penalty |
|---|---|
| Supplying or administering a controlled drug other than cannabis, or possessing one intending to supply it (section 33I(1)) | $50,000 or 10 years; $75,000 or 15 years for a serious drug offender |
| Supplying or administering cannabis, cannabis resin or cannabis oil (section 33I(2)) | $15,000 or 3 years |
| Selling, supplying or administering a controlled drug to a child (section 33F) | $1,000,000 or life |
| Selling, supplying or administering a controlled drug in a school zone (section 33G) | $1,000,000 or life |
Cocks v The Queen [2022] SASCA 21 shows how supply and trafficking charges can sit together. The offender supplied MDMA to a man who died of an overdose and was also sentenced for two counts of trafficking. The cannabis pages cover supplying cannabis to a child and cannabis offences in a school zone.
What quantities apply?
Section 32 creates three offences graded by quantity. The quantities for each drug are prescribed in Schedule 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), in the version in force from 27 June 2024.
| Drug | Trafficable quantity | Commercial quantity | Large commercial quantity |
|---|---|---|---|
| Methylamphetamine (ice) | 2 grams | 100 grams pure or 500 grams mixed | 750 grams pure or 1 kilogram mixed |
| Amphetamine | 2 grams | 100 grams pure or 500 grams mixed | 750 grams pure or 1 kilogram mixed |
| MDMA (ecstasy) | 2 grams | 100 grams pure or 500 grams mixed | 750 grams pure or 1 kilogram mixed |
| Cocaine | 2 grams | 100 grams pure or 200 grams mixed | 750 grams pure or 1 kilogram mixed |
| Heroin | 2 grams | 100 grams pure or 200 grams mixed | 750 grams pure or 1 kilogram mixed |
| Ketamine | 6 grams | 500 grams | 2 kilograms |
| GHB | 50 grams | 500 grams | 2 kilograms |
The trafficable quantity triggers the presumption of sale in section 32(5), explained below. The commercial and large commercial quantities decide which offence is charged and its maximum penalty.
Pure and mixed amounts. Where the Regulations prescribe more than one measure, the measure that applies is the one the charge alleges: the pure drug, a mixture, or a number of dosage units (section 33OA(1)). Since 29 September 2022, a drug is taken to be contained in a mixture unless it is proved beyond reasonable doubt that it was not, or that it was pure (section 33OA(3)).
In Kingston, decided before that provision commenced, the large commercial quantity of butanediol was prescribed for a mixture only. The Court of Appeal concluded that liquid of 98 to 99 per cent purity had not been shown to be a mixture ([85] to [91]), and ordered retrials on the basic charge of attempted trafficking under section 32(3) ([92]).
Adding separate deals together. Offences involving different batches of a drug can be charged as one offence, with the quantities added together, if they were committed on the same occasion, within 7 days of each other, or in the course of an organised commercial activity (section 33N(1)). The charge must say so and give adequate particulars (section 33N(2)). The presumption of sale applies to an aggregated charge only where the conduct was on the same occasion, or on occasions within 7 days of each other with at least one involving a trafficable quantity (section 33N(3)).
Quantity is not the whole story. In R v Kong [2013] SASCFC 15 the Court of Criminal Appeal said that minor involvement in a major trafficking enterprise may lead to a sentence in a lower range ([86]). It added that the quantity in a charge may be a matter of happenstance, depending on how far into a venture the offender was caught ([87]).
How does the presumption of sale work?
Possession of a trafficable quantity shifts the burden. If the prosecution proves that the person possessed a trafficable quantity, section 32(5) presumes, in the absence of proof to the contrary, that the person had the intention or purpose of sale the charge requires.
Possession of the quantity must be proved first. Under the former presumption, the Court of Criminal Appeal said the prosecution had to prove beyond reasonable doubt that the accused knowingly possessed more than the prescribed amount. In R v Zampogna [2003] SASC 75, that amount was reached only by adding a second parcel whose possession was disputed. The jury was left with alternative routes to possession of it, and the resulting uncertainty was a miscarriage of justice ([19] to [24], [33] to [40]).
The person can then rebut the presumption. Under the former provision, the accused had to prove on the balance of probabilities that the drug was not possessed for sale (Zampogna [43]; R v Granger [2004] SASC 156 at [7], [59]). In Granger, where about 17 kilograms of cannabis were found, Doyle CJ said it was not enough to show that some or much of it would have been used personally. The relevant matters included the quantity compared with the claimed use, the accused’s finances and the absence of signs of sale ([60] to [62]).
These decisions concerned the presumption as it stood before 2007. The current section 32(5) uses the same words, “in the absence of proof to the contrary”.
Sale can be proved without the presumption. The prosecution can also prove an intention to sell from the circumstances. In McLeod v Police [2019] SASC 69, possession for sale was inferred from 11 deal bags and the surrounding evidence, although the amount was below the trafficable quantity and the prosecution did not rely on the presumption ([45], [47]).
In practice, the evidence of sale is usually deal bags, scales, cash, lists of names and amounts, several phones, and messages about prices. Each of those can have an innocent explanation, and the explanation needs to be ready early.
What else must the prosecution prove?
Possession. For the possession form of trafficking, the prosecution must prove possession in the legal sense: knowledge of the drug and an intention to control it, not just being near it. Possession includes control over the drug’s disposition and joint possession (section 4). The drug possession guide explains how this works when drugs are found in a shared house or car.
In McLeod, the appellant tried to hide a tub of deal bags as police came in. That act was positive evidence of control. It distinguished the case from those where police find drugs in a house but have no evidence of anyone doing anything with them ([37] to [42]).
Knowledge that it is a drug. The prosecution must prove the person knew, or was reckless as to, the fact that the substance was a controlled substance (section 33P(1)). It need not prove knowledge of the particular drug or its quantity (section 33P(2)). In Kingston, the Court of Appeal said knowledge or recklessness that a substance is a controlled substance is enough; the accused need not know its identity ([46]).
What the drug is. Most cases rely on laboratory analysis, which also gives the weight and purity. Analysis is not the only route. In McLeod, the Supreme Court accepted that cannabis could be identified from an experienced officer’s unchallenged evidence ([53] to [56]).
An intention to sell. Where the presumption does not apply, the prosecution must prove the intention or purpose of sale. Recklessness about a later sale is not the same thing (Kingston [39]).
What is the penalty for drug trafficking?
The maximum depends on the quantity, on whether the person is a serious drug offender, and on whether the offence is aggravated:
| Offence | Basic offence | Serious drug offender | Aggravated offence |
|---|---|---|---|
| Large commercial quantity (section 32(1)) | $1,000,000 or life | $1,000,000 or life | $1,000,000 or life |
| Commercial quantity (section 32(2)) | $200,000 or 25 years | $500,000 or life | $500,000 or life |
| In a prescribed area (section 32(2a)) | $75,000 or 15 years | $200,000 or 25 years | $200,000 or 25 years |
| Any quantity (section 32(3)) | $50,000 or 10 years | $75,000 or 15 years | $75,000 or 15 years |
Serious drug offender. A person is a serious drug offender if, within the 10 years before the offence, they were convicted of two or more offences against Divisions 2 or 3 of Part 5 of the Act (other than Subdivision 4 of Division 2), or three or more other Part 5 offences, arising from separate incidents (section 4). The second limb does not count the offences the definition excludes, such as possession under section 33L.
Prescribed area. Trafficking in a prescribed area carries a higher maximum than the basic offence (section 32(2a)). Prescribed areas include certain licensed premises, the casino, venues used for public entertainment, and areas used with them, such as car parks and queues.
Aggravated offences. An offence is aggravated if it was committed for the benefit of, at the direction of, or in association with a criminal organisation, or by a person who identifies as belonging to or being associated with one, which can include displaying insignia (section 43). The circumstances of aggravation must be stated in the charge.
Cannabis only. A section 32(3) offence involving only cannabis, cannabis resin or cannabis oil is dealt with in the Magistrates Court. It can be committed to the District Court if a penalty of more than 5 years may be warranted (section 32(4)).
How do courts sentence drug trafficking?
Section 44(1) lists the matters a court must consider. They include the nature of the drug, the quantity, the person’s circumstances including their own drug use, any commercial or other motive, the likely financial gain and any other relevant factor. Likely financial gain is not taken into account if it is the subject of an application under the Criminal Assets Confiscation Act 2005 (section 44(1)(d)(ii)).
All drugs other than cannabis are treated as equally harmful. The relative harm of controlled drugs other than cannabis products is not relevant; they are all treated as equally very harmful (section 44(2)). In R v Young [2016] SASCFC 102, the majority said this rule is limited to the physiological effects of drugs ([43]). A sentence for trafficking cannabis is likely to be lower than one for other drugs (R v Donald [2016] SASCFC 117 at [90]).
The Young standard. In Young, a five judge Court of Criminal Appeal considered sentencing for basic trafficking under section 32(3). The majority (Kourakis CJ, with Vanstone and Stanley JJ agreeing) said:
- sentences of four to seven years remain appropriate for offenders motivated to a greater or lesser extent by profit ([66]);
- less than four years may be appropriate for a first offender with an all-consuming addiction who has voluntarily begun withdrawing, but that leniency is lost with persistence or reoffending ([67] to [68]); and
- sentences approaching the 10-year maximum are reserved for middle-order dealers and persistent or recidivist street dealers ([68]).
The majority described the standard as indicative ([42]). Young was decided when the maximum for the basic offence was $50,000 or 10 years, the same maximum that applies today to a person who is not a serious drug offender.
The Court of Appeal has continued to apply Young. In Teagle v The King [2023] SASCA 108 it relied on Young in setting a starting point for a large commercial quantity count ([57]). In Holloway v The King [2023] SASCA 130 it explained that the Young range concerns basic trafficking, with its 10-year maximum, while large commercial quantity trafficking carries life ([36] to [37]).
Profit and commerciality. In Cocks, the Court of Appeal distinguished making a profit, such as selling to fund an addiction, from commerciality, which is profit over and above the costs of the habit ([54]). It said Young’s reference to offenders motivated by profit generally refers to cases with that element of commerciality ([59]), and that the Young standard is not a tariff ([61]). In Cocks a commercial motive was not proved beyond reasonable doubt, and the sentence was reduced and suspended ([62], [73]).
Mitigation must be proved. In Young the majority said the offender bore the persuasive onus of proving a mitigating circumstance ([70]). Claims of addiction and personal use, pressed against substantial evidence of commerciality, may need to be supported by sworn evidence or other corroboration ([69]).
General deterrence. The Court of Criminal Appeal has said general deterrence must be given great weight for commercial drug dealers (Kong [90]; Donald [91]). In Donald it described methylamphetamine as readily available, addictive and very harmful ([87]).
Charged and uncharged conduct. An offender is punished only for the offences charged, but those offences are seen in their wider context (Donald [92]). Evidence of uncharged dealing can show that the offending was not isolated (Wallace v The King [2023] SASCA 127 at [28]).
Recent appellate results show the spread:
| Case | The offending | Result on appeal |
|---|---|---|
| Cocks v The Queen [2022] SASCA 21 | Supply of MDMA to a man who died, and two counts of trafficking; commercial motive not proved | Appeal allowed; resentenced to 2 years 10 months and 8 days, non-parole period 1 year 4 months, suspended on a bond ([62], [73]) |
| Teagle v The King [2023] SASCA 108 | Repeat trafficking on bail, including a large commercial quantity count | 11 years on that count was manifestly excessive, but the overall sentence was not changed; appeal dismissed ([57] to [58], [65] to [69]) |
| Holloway v The King [2023] SASCA 130 | Importing and arranging distribution of nearly five times the large commercial quantity of butanediol | 10-year starting point upheld; appeal dismissed ([13], [36] to [37], [43]) |
| Awkar v The King [2023] SASCA 118 | Trusted member of a methylamphetamine syndicate over about 15 months | Error conceded; on resentence no lesser sentence warranted; appeal dismissed ([61], [72] to [87]) |
| Wallace v The King [2023] SASCA 127 | Sophisticated two-State operation by a serious repeat offender | Sentence high but within range; appeal dismissed ([28], [31], [33] to [34]) |
These are results on particular facts, not a scale.
What happens to cash, cars and homes?
Trafficking is a serious offence under the Criminal Assets Confiscation Act 2005 (SA). Once a person is charged, a court must, on the application of the Director of Public Prosecutions, restrain specified property of that person, whether or not it is linked to the offence (sections 24(1)(a) and 24(5)).
Prescribed drug offenders. A person convicted of trafficking a commercial or large commercial quantity (section 32(1) or (2)) becomes a prescribed drug offender. So does a person convicted of a serious drug offence who has at least two other convictions for prescribed drug offences, where all three offences were committed on separate occasions within 10 years (section 6A). The scheme applies to offences committed after 10 August 2018.
When a person becomes a prescribed drug offender, all property they owned or effectively controlled on the day of conviction is forfeited, apart from protected property and a few other exceptions (section 56A). Protected property means household contents, personal effects, animals and plants, but not cash, jewellery other than wedding rings, cars, boats or a number of other listed items (Criminal Assets Confiscation Regulations 2021, regulation 6).
At sentence. The court must not take into account forfeiture of the proceeds of the offence, or of a prescribed drug offender’s property, but must take into account forfeiture of other property (section 224).
The criminal assets confiscation guide explains restraining orders, the six-month deadlines and how to apply to exclude property.
How similar cases tend to play out
Three illustrations of how section 32 and the related provisions apply on ordinary facts. They are not predictions. The result depends on the evidence, the quantity, the person’s record and the court.
Lower range. A 20-year-old with no record is stopped with 3 grams of methylamphetamine in five small bags. He admits selling to friends to pay for his own use. Three grams is more than the trafficable quantity, so section 32(5) presumes the drug was for sale unless he proves otherwise. If he pleads guilty under section 32(3), the distinction drawn in Cocks between selling to fund a habit and commercial dealing, and the allowance in Young for an addicted first offender who has begun withdrawing, frame the sentencing argument.
Middle range. Police search a house shared by four adults and find 40 grams of methylamphetamine, scales and $9,000 in a cupboard in a common area. Living in the house is not enough to prove possession, and the prosecution must exclude the possibility that one of the others had the drug alone (R v GNN [2000] SASC 447 at [18], [20]). If possession is proved against one occupant, the presumption of sale follows. The cash can be restrained once a charge is laid.
Upper range. A man drives 600 grams of methylamphetamine mixture from one dealer to another for payment. Transporting for the purpose of sale is taking part in the process of sale, and 600 grams of mixture is a commercial quantity, so the charge is under section 32(2): a maximum of 25 years, or life if he is a serious drug offender. If convicted, he becomes a prescribed drug offender, and his house, car and savings are forfeited under section 56A of the Criminal Assets Confiscation Act 2005, however they were acquired.
How we defend a drug trafficking charge
A trafficking charge often turns on one element: possession, knowledge, the purpose of sale or the quantity. We find the weakest point in the prosecution case before anything else.
| Stage | What happens | What we do |
|---|---|---|
| Arrest and search | Police search under section 52, seize drugs, phones and cash, and seek an interview. | Advise before any interview, and test whether the search was lawful. |
| Charge | The charge sets out the drug, the quantity and the form of trafficking alleged. | Check the particulars, any aggregation under section 33N, and bail. |
| Disclosure | Analysis certificates, phone downloads, surveillance and statements arrive. | Test the weight, purity and handling of the exhibits, and read the messages said to show sale. |
| Negotiation | The prosecution may accept a lesser quantity, a lesser offence, or possession instead of trafficking. | Put the evidence that rebuts the presumption, or the gaps in proof of possession, to the prosecution. |
| Trial or plea | A contested trial, or a plea of guilty. | Run the defence at trial, or present addiction, rehabilitation and the absence of commerciality at sentence. |
| Property | Restraining orders and forfeiture under the Criminal Assets Confiscation Act 2005. | Advise on exclusion applications and their deadlines before they pass. |
We cannot promise a particular result, and no lawyer can. We can make sure every element is tested and the court hears the full picture before it sentences.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Drug trafficking case law
These are the South Australian appellate decisions this guide relies on. The case notes state what each court decided.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| R v Young [2016] SASCFC 102 | Court of Criminal Appeal | Four to seven years for profit-motivated street-level traffickers (3:2 majority); section 44(2) limited to physiological effects | [7], [42] to [43], [57], [60] to [70] |
| Cocks v The Queen [2022] SASCA 21 | Court of Appeal | Profit to fund a habit distinguished from commerciality; Young is not a tariff | [54], [59] to [62], [73] |
| R v Kong [2013] SASCFC 15 | Court of Criminal Appeal | The post-2007 scheme; role and happenstance of quantity; general deterrence | [62] to [69], [86] to [90] |
| R v Donald [2016] SASCFC 117 | Court of Criminal Appeal | Methylamphetamine very harmful; cannabis sentences likely lower; wider context of charged conduct | [87] to [92] |
| Teagle v The King [2023] SASCA 108 | Court of Appeal | Large commercial quantity count is not base-level trafficking; eight to nine year starting point | [50] to [58], [65] to [69] |
| Holloway v The King [2023] SASCA 130 | Court of Appeal | Young range concerns basic trafficking; 10-year starting point for large commercial quantity upheld | [13], [36] to [37], [41] |
| Awkar v The King [2023] SASCA 118 | Court of Appeal | Notional sentences by count reflecting quantity and role | [61], [72] to [87] |
| Wallace v The King [2023] SASCA 127 | Court of Appeal | Uncharged dealing can show the offending was not isolated | [25] to [28], [31] |
| Kingston (a pseudonym) v The Queen [2022] SASCA 90 | Court of Appeal | Recklessness about sale is not intention; knowledge that it is a controlled substance suffices; meaning of mixture | [39], [46], [85] to [92] |
| R v Zampogna [2003] SASC 75 | Court of Criminal Appeal | Possession of the prescribed amount must be proved before the presumption applies (former provision) | [19] to [24], [33] to [40], [43] |
| R v Granger [2004] SASC 156 | Court of Criminal Appeal | Rebutting the presumption on the balance of probabilities (former provision) | [7], [59] to [62] |
| McLeod v Police [2019] SASC 69 | Supreme Court | Possession and control; sale inferred without the presumption; identity of the drug | [34] to [35], [37] to [42], [47], [53] to [56] |
Case notes
R v Young [2016] SASCFC 102
A five judge Court of Criminal Appeal allowed a prosecution appeal against sentences for four counts of trafficking. Kourakis CJ, with Vanstone and Stanley JJ agreeing, said the 2007 scheme requires sentences to be differentiated by commerciality, that relativity must be kept across the quantity tiers, and that a regime with a linear relationship to quantity would be unjust ([7], [57], [60] to [61]). The majority said four to seven years remains appropriate for traffickers motivated to a greater or lesser extent by profit, that less than four years may suit an addicted first offender who has begun withdrawing, and that sentences near the 10-year maximum are reserved for middle-order and persistent dealers ([65] to [68]). Blue J, with Doyle J agreeing, would have adopted a different standard ([216], [233]). The respondent was resentenced, with a single sentence of five years five months on the trafficking counts and a non-parole period of four years overall ([73] to [79]).
Cocks v The Queen [2022] SASCA 21
The offender supplied MDMA to a man who died of an overdose and was also sentenced for two counts of trafficking. The Court of Appeal distinguished making a profit, as by selling to fund a habit, from commerciality, being profit beyond the costs of addiction ([54]). It said Young’s reference to offenders motivated by profit generally refers to the latter ([59]), that the motive is one important issue among many ([60]), and that the Young standard is not a tariff ([61]). A commercial motive was not proved beyond reasonable doubt; the dealing was cooperative within a small group ([62]). The appeal was allowed, and the offender was resentenced to 2 years 10 months and 8 days with a non-parole period of 1 year 4 months, suspended on a good behaviour bond ([73]).
R v Kong [2013] SASCFC 15
The respondent brokered a sale of 9,991 methylamphetamine tablets, a large commercial quantity. The Court of Criminal Appeal explained the post-2007 scheme ([62] to [69]). It said the scaled structure of maximum penalties must be respected, while minor involvement in a major enterprise may place a sentence in a lower range and the quantity charged may be happenstance ([82] to [89]). It said general deterrence must be given great weight for commercial drug dealers ([90]) and considered the five-year starting point manifestly inadequate ([93]). Permission to appeal was nonetheless refused in the Court’s residual discretion ([96] to [105]).
R v Donald [2016] SASCFC 117
Three men were sentenced for trafficking methylamphetamine and cannabis through a network supplying regional towns over six months. In resentencing them, the Court of Criminal Appeal said methylamphetamine is readily available, addictive and very harmful ([87]), and that a cannabis sentence is likely to be lower than for other drugs ([90]). It repeated that general deterrence carries great weight for commercial dealers ([91]), and that offenders are punished only for the offences charged, seen in their wider context ([92]). The appeals were allowed and the applicants resentenced ([110] to [113]).
Teagle v The King [2023] SASCA 108
The Court of Appeal accepted that the applicant’s deprived childhood and addiction had to be brought to account, but said deterrence remained highly significant given the quantities, the signs of sale and the repeat offending on bail ([50] to [54]). The large commercial quantity count was not base-level trafficking of the kind addressed in Young; a starting point of eight to nine years was appropriate, so 11 years was manifestly excessive ([57] to [58]). Exercising the discretion afresh, the Court would not impose a different overall sentence, and the appeal was dismissed ([65] to [69]).
Holloway v The King [2023] SASCA 130
The appellant alone sourced, imported and arranged the distribution of close to five times the large commercial quantity of butanediol ([3] to [6]). The Court of Appeal found no error in a 10-year starting point. The Young range concerns basic trafficking with a 10-year maximum, while large commercial quantity trafficking carries life, and her role gave her the chance of profit at every level ([13], [36] to [37]). Section 44(2) gave no reason to treat butanediol differently from methylamphetamine ([41]). The appeal was dismissed ([43] to [45]).
Awkar v The King [2023] SASCA 118
The appellant was a trusted member of a highly organised syndicate that received and distributed large quantities of methylamphetamine over about 15 months ([18], [44]). The sentencing judge erred, as was conceded, in applying totality before allowing for mitigation ([61]). Resentencing, the Court set notional sentences by count to reflect quantity and role, including four years on a count where his role was only to courier a commercial quantity, and would not impose a lesser sentence ([72] to [86]). The appeal was dismissed ([87]).
Wallace v The King [2023] SASCA 127
The offending was a sophisticated two-State operation ([5] to [6], [18] to [19]). As a serious repeat offender, the question under section 54(2) of the Sentencing Act 2017, as it then stood, was whether his personal circumstances were so exceptional as to outweigh community safety and deterrence ([25] to [26]). The Court said the uncharged consignments and unexplained deposits were properly used to show the offending was not isolated, and that the sentence was within range ([28], [31]). Permission was refused on most grounds, and the appeal was dismissed ([33] to [34]).
Kingston (a pseudonym) v The Queen [2022] SASCA 90
Two accused were tried for attempted trafficking in a large commercial quantity of butanediol. The Court of Appeal concluded that the jury had been wrongly directed that steps taken while reckless about a likely sale were enough ([39]). It said knowledge or recklessness that a substance is a controlled substance suffices, without knowledge of its identity ([46]). Because the large commercial quantity was prescribed for a mixture only, and liquid of 98 to 99 per cent purity had not been shown to be a mixture ([85] to [91]), the appeals were allowed and retrials ordered on attempted trafficking under section 32(3) ([92], [125], [128]).
R v Zampogna [2003] SASC 75
Under the former presumption, the Court of Criminal Appeal held there was a miscarriage of justice where the prescribed amount was reached only by adding a second parcel whose possession was disputed, leaving the application of the presumption uncertain ([19] to [24], [33] to [40]). Duggan J said the presumption is rebutted if the accused shows on the balance of probabilities that possession was not for sale ([43]). The conviction was set aside and a retrial ordered ([48]).
R v Granger [2004] SASC 156
The Court of Criminal Appeal rejected challenges to the validity of the former presumption ([59]) and treated it as requiring the accused to prove, on the balance of probabilities, that the drug was not possessed for sale ([7]). Doyle CJ said proof that some or much of the cannabis would have been smoked personally was not enough. He identified the quantity against the claimed use, the accused’s finances and the absence of signs of sale as relevant ([60] to [62]). The appeals were dismissed ([91], [92], [115]).
McLeod v Police [2019] SASC 69
Stanley J said possession requires the power and intention to exercise control to the exclusion of others, and that mere acquiescence in someone else storing drugs in one’s house is not enough ([34] to [35]). The appellant’s attempt to hide the tub of deal bags as police entered was positive evidence of control ([37] to [42]). Possession for sale was proved from the circumstances without the presumption ([45], [47]), and the identity of the drug could be proved without scientific analysis ([53] to [56]). The appeal was dismissed ([60]).
Frequently asked questions
What is drug trafficking in South Australia?
Trafficking means selling a controlled drug, having possession of it intending to sell it, or taking part in the process of its sale (section 4 of the Controlled Substances Act 1984). Offering or agreeing to sell is enough.
What is the penalty for drug trafficking in SA?
For a person who is not a serious drug offender, the maximum is $50,000 or 10 years for any quantity, $200,000 or 25 years for a commercial quantity, and $1,000,000 or life for a large commercial quantity (section 32). Higher maximums apply to serious drug offenders and aggravated offences.
Can you be charged with trafficking without selling anything?
Yes. Possessing a drug intending to sell it is trafficking. So is taking part in any step in the process of sale for that purpose, such as storing, transporting, packaging or concealing the drug (section 4).
What is a trafficable quantity?
It is the amount, prescribed for each drug, that triggers the presumption of sale. It is 2 grams for methylamphetamine, amphetamine, MDMA, cocaine and heroin, 6 grams for ketamine and 50 grams for GHB (Schedule 1 of the Regulations).
Does having a trafficable quantity mean a conviction for trafficking?
No. It means the court presumes the drug was held for sale unless the person proves otherwise (section 32(5)). The prosecution must still prove possession, and evidence of personal use, finances and the absence of signs of dealing can be relied on to rebut the presumption.
Is giving drugs to a friend trafficking?
Giving a drug away with nothing in return is supply rather than trafficking. Supply is still an offence, carrying up to $50,000 or 10 years for drugs other than cannabis (section 33I). If the friend pays or gives something in exchange, the transaction can be a sale.
What is a commercial quantity?
It is the middle quantity tier. For methylamphetamine it is 100 grams of the pure drug or 500 grams of a mixture; for cocaine and heroin, 100 grams pure or 200 grams mixed. Trafficking a commercial quantity carries up to 25 years, or life for a serious drug offender.
Is trafficking at a nightclub or festival treated more seriously?
It can be. Trafficking in a prescribed area, which includes certain licensed premises, the casino and venues used for public entertainment, carries up to $75,000 or 15 years for the basic offence, compared with $50,000 or 10 years elsewhere (section 32(2a) and (3)).
What is a serious drug offender?
A person convicted within the previous 10 years of two or more of the more serious drug offences, or three or more of most other drug offences, arising from separate incidents (section 4). Serious drug offenders face higher maximum penalties.
Will I go to jail for drug trafficking?
Imprisonment is common but not inevitable. The majority in R v Young said four to seven years remains appropriate for street-level traffickers motivated by profit, with less than four years possible for an addicted first offender who has begun withdrawing. The outcome depends on quantity, role, motive, record and rehabilitation.
Can my house or car be taken after a trafficking charge?
Property can be restrained once a charge is laid (section 24 of the Criminal Assets Confiscation Act 2005). If the person is convicted of trafficking a commercial or large commercial quantity, all their property other than protected property is forfeited on conviction (section 56A).
Do I need a lawyer for a drug trafficking charge?
The presumption of sale, the quantity rules and the confiscation scheme mean small details decide large outcomes. We can advise on the charge, bail and any property at risk. Call (08) 7094 2021.
South Australian courts we attend for drug trafficking charges
We defend drug trafficking charges in the Adelaide Magistrates Court, the suburban and regional Magistrates Courts listed below, and the District and Supreme Courts.
Courts we attend
Book a same-day free 30-minute consultation or call (08) 7094 2021.