The intention to be successful

Drug offences throw up all kinds of problems for the police and the courts. Traffickers are often highly organised and highly motivated. Trafficking is also an activity that, unlike many other crimes, is designed to take place on multiple occasions over a period of time. It can be, essentially, like a business. It is for that reason that courts have recognised that carrying on a business of trafficking is, itself, a form of trafficking. This is known as Girretti trafficking and its existence is relevantly uncontentious.

However, Victorian courts have recently been struggling with various issues around Giretti trafficking. In particular, how does Giretti trafficking operate in the context of aggravated offences such as trafficking a commercial quantity of a drug of dependence, or trafficking a large commercial quantity of a drug of dependence?

The first issue is whether you can aggregate a number of "sales" to reach the quantity required for trafficking a commercial quantity. This principle emphatically endorsed in Le v R [2011] VSCA 42. There, the defence argued that the notion of Giretti trafficking a commercial quantity meant conducting a business transacting in commercial quantities. As a practical matter, that would mean the person is routinely selling 100g of amphetamines at a time, or 1kg of cannabis. Such activity would be staggering and rightly be the subject of very heavy penalties. The court rejected the defence argument and held that Giretti trafficking can mean conducting a business of trafficking which, in its totality, transacts in a commercial quantity of a drug of dependence.

The focus then turns to the required intention and what sort of evidence is required to prove that intention. In the cultivation area, there is an ongoing difficulty in proving cultivation of a commercial quantity because an accused may argue that the plants were bigger than he intended. There is also, I suspect, difficulty in proving an accused ever even thought in terms of the wet weight of a plant. This difficulty is not, however, limited to cultivation offences. An analogous problem arises in Giretti style trafficking. According to McCulloch v R [2009] VSCA 34:

before a person can be convicted of trafficking in a commercial quantity on this basis, the individual must be found to have possessed the intention to traffick in at least the designated amount contemporaneously with his or her engagement in the conduct said to constitute the actus reus.

While those comments were obiter in McCulloch, the Court of Appeal in Mustica v R [2011] VSCA 79 has now confirmed that they are correct statements of principle. In Mustica, the trial judge had directed the jury that it could convict of trafficking on a Giretti basis if it found that the accused either had the intention to traffick in a commercial quantity at the outset, or developed that intention during the course of trafficking. The court declared that this was wrong, as the criminal law requires proof that the prohibited intention accompanied the prohibited acts. Where there is an ongoing business of trafficking, this means that the intention must exist at the outset of the trafficking. The court explained at [46]:

The formulation of intention in DPP Reference No.1 was in the context of a single transaction. Most of the cases in which intention has been discussed have been of that kind – whether the offence be importation of a prohibited substance, or trafficking. R v Te involved conviction on a Giretti count; but intention was not in issue. That was also the situation in R v Lao & Nguyen. But it cannot be doubted that the same intention must be proved where a Giretti count is in question; and that, absent admission, intention is a matter of inference. So, in the case of a person indicted on a count under or s 71AA, intention might be inferred from the accused being shown to have had, from the outset of the trafficking business, knowledge of the nature of the drug and of the quantity which would be trafficked. Alternatively, intention might be inferred if the Crown proved that the accused knew from the outset of the trafficking business that there was a significant or real chance that he or she would traffick quantities of the drug totalling not less than the threshold quantity (footnotes omitted).

Comment
This case will likely pose significant practical problems for prosecutors formulating their case and juries deciding the issues. While I don't dispute the validity of the logic, I wonder how it will work in practice. Would a jury, in the run of the mill ongoing trafficking case, be entitled to infer that the accused intended for his or her sales to keep going for as long as possible. That is, can the jury infer an intention to be successful in both a commercial sense and a legal sense, but securing many purchasers and avoid discovery by police?

If the accused routinely sells 5g of amphetamines a week (and intends to sell this much or more) and there is no evidence that he planned to stop within 19 weeks, could the jury infer that the accused intended to traffick for at least 20 weeks and hence intended to traffick at least 100g of amphetamines? Could the jury do this even if the ongoing viability of the accused's 'business' depended on sourcing the relevant drugs from his supplier each week? Is the accused's guilt of commercial trafficking altered if, after week 4, the accused is surprisingly successful and sells 80g, quickly comes to the attention of police and is arrested? And what of the far less active traficker who routinely sells 5g a month (say, to a circle of friends on a monthly fishing trip), but has no intention of stopping within 2 years?

In this, as in so many areas, I expect that it will fall to the good sense of the jury to decide whether it accepts Crown case. I do suspect, however, that juries will not look favourably on an argument of "Well, I never intended to sell that much from the outset. I thought I'd stop or be stopped sooner but, since I was successful, I just kept going".