Criminal Law

Drug Supply

Drug supply law is one of the most complex areas of criminal law. The complexity comes from a combination of the several different ways one can commit a supply offence; the different levels of involvement in drug supply and the various factors that need to be taken into account when sentencing someone for supplying a prohibited drug. As a result, the severity of the likely penalties also varies, due to the many different scenarios that can constitute the different types and levels of drug supply.

The Law

Section 25 of the Drug Misuse and Trafficking Act 1985 states that:

A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.  

Penalties

The maximum penalties for supply prohibited drug NSW offences are as follows:

  • For a small quantity that is less than the traffickable amount, the maximum penalty is a fine of $5,500 and/or 2 years' imprisonment.  

  • For more than the traffickable amount and less than the indictable amount, the maximum penalty is a $11,000 fine and/or 2 years' imprisonment.

  • For supply of an indictable amount the maximum penalty is a fine of $220,000 and/or 15 years' imprisonment  If the prohibited drug is cannabis, then the maximum penalty is a fine of $220,000 and/or 10 years' imprisonment.

  • For supply of a prohibited drug not less than a commercial quantity the maximum penalty is a fine of $385,000 and/or 20 years' imprisonment. If the prohibited drug is cannabis, then maximum penalty is a fine of $385,000 and/or 15 years' imprisonment. 

Commentary

The offence of supplying a prohibited drug can be committed in several ways, some of which may not be that obvious to many. For instance, there is a misconception that in order for an act to constitute a supply, money needs to be involved. Although supplying a drug for profit is considered more serious and the most common form of supply, it is not an element of a supply offence. Obtaining drugs for another is supply. Apart from one exception, simply giving a drug to another constitutes a supply. (The exception to this is where a person is given drugs to hold for another and then that person gives the drug back. Depending on the amount of drugs, this can constitute possession, only, as the person was simply acting as a bailee for the other - essentially, the drug remains the property of the other and was merely in the person's possession/control.)

There also does not need to be a direct, physical involvement in the actual transaction that constitutes the supply, to be found guilty of supplying a prohibited drug. This can be understood from how the the law defines "supply", which includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things. 

Actual Supply

In a trial for a simple case of actual supply, the prosecution must prove that:

  • The accused supplied a substance to another person
  • The substance that was supplied was a prohibited drug
  • The accused knew or believed at the time of the supply that the substance was a prohibited drug.

To satisfy the first element, the prosecution just needs to prove that the accused intentionally gave the substance to another person.  The prosecution then needs to prove that the substance supplied was a particular drug.  The prosecution therefore needs to prove what the substance is. However, it is important to note that the prosecution does not need to prove that the entire substance supplied is a drug.  The purity of the substance is not an issue when determining whether the substance is a drug.

The final element, being the accused's knowledge or belief that the substance was a prohibited drug, can be proved by the circumstances of the case. The prosecution does not need to prove that the accused knew that the substance was a particular drug; it is sufficient to prove that the accused knew or at least believed that the substance was a prohibited drug of some sort. As noted, a jury can draw on the circumstances of the case to determine whether they are satisfied that the accused at least had a belief that the substance was a drug.  In most cases where knowledge becomes an issue, although not required by law, the practical circumstances of the case will typically result in the accused having to provide evidence in his or her case to counter the allegation that he or she had knowledge that the substance was a prohibited drug.

Knowingly take part in supply

One can commit a supply offence by "knowingly taking part" in the supply of a prohibited drug. Pursuant to the Drug Misuse and Trafficking Act, a person takes part in the supply of a prohibited drug if:

(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that  supply,

(b) the person provides or arranges finance for any such step in that process, or
(c) the person provides the premises in which any such step in that process is taken, or permits any such step in that process to be taken in the premises.

Deemed Supply

Pursuant to section 29 of the Drug Misuse and Trafficking Act, if a person is in possession of not less than the traffickable quantity of a prohibited drug, then the possession is deemed to be for the purpose of supply of that drug. It is a matter for the authorities whether someone is charged with supply, relying on the deeming provision. There are circumstances where the police exercise their discretion to not charge someone with supply even if they are in possession of the traffickable quantity.

Once charged with supply as a result of the "deeming" provision, the onus falls on the accused person to prove they were in possession of the prohibited drug for a purpose other than supply.

Our criminal lawyers are experienced in having deemed supply charges reduced to possession charges.

To see the traffickable quantity for some of the more common prohibited drugs, see our table here.

The maximum penalties for supply offences are severe. The law also holds that where someone is found to be substantially involved in the supply of prohibited drugs, then a full time custodial sentence should be imposed, unless there are exceptional circumstances.

Due to the complexity of drug supply law and the severe penalties that are imposed, it is imperative to seek legal advice and representation from an experienced criminal lawyer.

If you have been charged with supply prohibited drug or other drug supply charges, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.

We have drug lawyers in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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