The aggravating circumstance of commercial quantity under s.71(1)(a) of the Drugs Poisons and Controlled Substances Act 1981 (Vic) must be alleged as an element of the offence and determined by the jury, not treated as a separate question or sentencing factor for the judge. Where the jury cannot agree on the aggravating circumstance, the judge cannot arrogate that determination to himself. The practice of asking the jury to return a general verdict on trafficking and then posing a separate question about commercial quantity is erroneous.
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