Overview

Supplying prohibited drugs is a serious drug charge that is treated as such by the courts, as reflected in the drug supply sentencing guidelines.

Three common drug supply offences in the Drug Misuse and Trafficking Act 1985 (NSW) are:

  • Supply Prohibited Drug.
  • Deemed Supply.
  • Ongoing Supply.

 

Supply Prohibited Drug

Providing a drug to another person is a crime under section 25(1) or (2) of the Drug Misuse and Trafficking Act. “Supply prohibited drug” can be charged when someone:

  • Supplied, or knowingly took part in the supply of,
  • A prohibited drug.

“Supply” has a very broad meaning, and can include simply sharing drugs with a friend. Under section 3 of the Act, supply can include:

  • Selling and distributing.
  • Agreeing to supply.
  • Offering to supply.
  • Keeping or having in possession for supply.
  • Sending, forwarding, delivering or receiving for supply.
  • Authorising, directing, causing, suffering, permitting or attempting any of those acts or things.

Prohibited drugs are listed under Schedule 1 of the Act.

 

Deemed supply

A person is assumed, or “deemed”, to be supplying a prohibited drug if they have a specific quantity in their possession. Under section 29 of the Drug Misuse and Trafficking Act this occurs when a person has in their possession a traffickable quantity of a prohibited drug.

Under this section, the prosecution does not have to prove intent to supply. However, the accused cannot be convicted of this offence if they prove that, on the balance of probabilities, the drugs were for personal use.

 

What is a traffickable quantity?

What amounts to a “traffickable quantity” differs for each type of drug. Some of the most common prohibited drugs and associated traffickable quantities are listed below:

Prohibited Drug Cannabis leaf Cocaine Heroin MDMA

(Ecstasy)

 LSD
Traffickable Quantity 300g 3g 3g 0.75g 0.003 grams (15 tabs)

 

A traffickable quantity of a prohibited drug is considered more than would be appropriate for individual use, but sometimes this quantity is still very small.

A traffickable amount of MDMA for example (0.75g) normally involves no more than 2 tablets or capsules. Many users will take more than 3 tablets in an evening, or buy in bulk because it is cheaper to do so. They may not realise that the law deems them to be a supplier.

 

Penalties for supply prohibited drug and deemed supply

Supply or deemed supply of a prohibited drug is a more serious offence than drug possession, and the penalties are much higher. The maximum penalty depends on the quantity and type of prohibited drugs.

Penalties for some of the more common prohibited drugs are outlined in the table below:

QuantityCannabis leafCocaineHeroinMDMA
(Ecstasy)
Penalty
Small30g1g1g0.25gLocal Court: 2 years imprisonment and/or a $5,500 fine.
District Court: 15 years imprisonment (10 years for cannabis) and/or a $220,000 fine.
Traffickable300g3g3g0.75gLocal Court: 2 years imprisonment and/or an $11,000 fine.
District Court: 15 years imprisonment (10 years for cannabis) and/or a $220,000 fine.
Indictable1kg5g5g1.25gDistrict Court: 15 years imprisonment (10 years for cannabis) and/or a $220,000 fine.
Commercial25kg250g250g125gDistrict Court: 20 years imprisonment (15 years for cannabis) and/or a $385,000 fine.
Large Commercial100kg1kg1kg0.5kgDistrict Court: Life imprisonment (20 years for cannabis) and/or a $550,000 fine.

 

Ongoing Supply

Ongoing supply is a crime under section 25A of the Drug Misuse and Trafficking Act. It occurs when a person:

  • Supplies a prohibited drug (other than cannabis),
  • On three or more separate occasions during any period of 30 consecutive days,
  • For financial or material reward.

The maximum penalty for this charge is 20 years imprisonment and/or a $385,000 fine.

 

Frequently Asked Questions

In which court will drug supply charges be heard?

Drug supply offences are indictable offences and will be dealt with in the District Court. However, if the amount involved is less than an indictable quantity, then the matter may be dealt with summarily in the Local Court.

How should I respond to a deemed drug supply charge?

Often a person charged with deemed drug supply can negotiate to plead guilty to drug possession. This offence attracts much lower penalties.

In determining whether to accept a plea to the lesser charge of drug possession, the prosecution will consider whether there were any other indications of supply such as:

  • The amount of drugs.
  • Evidence of lists containing names and associated quantities.
  • The presence of resealable plastic bags, scales or money.
  • The existence of incriminating telephone messages.

If there are no substantial indicia of supply, only a small amount of the drug was found, and no previous convictions for supply exist, the prosecution may consider accepting a plea to possession instead of supply.

Should I complete the Written Notice of Pleading?

In some matters, the police will provide a Written Notice of Pleading together with the Court Attendance Notice (CAN). Completing and submitting this form allows you to plead in writing instead of attending court.

You should seek legal advice before completing a Written Notice of Pleading. Generally, we advise against it. By completing the written notice you will most likely receive a criminal conviction. Your matter will be heard in your absence and you will have lost the opportunity to present your case and advocate for a penalty which does not carry a criminal conviction. It also suggests to the court that you do not take the matter seriously.

What will the judge consider in deciding a sentence for drug supply?

There are a number of principles the courts follow when sentencing for drug matters, including:

  1. Role of offender and level of participation in supply: The offender’s role and the level of criminality involved are important factors.
  2. Quantity of drug: The Drug Misuse and Trafficking Act bases penalties on quantity. The perceived harm caused by different types of drugs is no longer a relevant consideration for sentencing.
  3. The relevance of addiction: An offender who supplies drugs out of greed is placed in the worst category of suppliers, while a user/dealer who sells primarily to feed his or her own habit is at a lower level of criminality.
  4. Assistance to authorities: Assistance to authorities is of particular importance in sentencing drug offenders and can result in a discounted sentence.

What should I do if I have been charged with drug supply?

Drug supply is a serious offence and can carry a sentence of life imprisonment. It is important to seek legal advice. If you have been charged with supplying prohibited drugs, there are a number of ways we can assist you in the court process. You may have a defence available and wish to plead not guilty, taking the matter to hearing. Alternatively, you may wish to plead guilty, in which case we can make submissions on sentencing on your behalf.

Don’t delay in contacting us for a free consultation. We will be able to advise you on the best course of action in your specific circumstances, the likely costs involved, and the expected time frame.

How can we help?

We are experienced in successfully defending drug supply charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.

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