Supply of a Prohibited Drug

Drug offences and the misuse of illegal drugs are taken very seriously within the NSW legal system. If you have been charged with the supply of a prohibited drug, contacting an experienced lawyer will prove imperative to achieving the best possible outcome for your case. The team here at Hamilton Janke lawyers are experts in drug offences, including drug supply offences, and can provide advice and support to assist you in getting your best result.

What is the Supply of a Prohibited Drug?

Drug supply is an offence outlined under Section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). This is defined as a person who supplies or knowingly partakes in the supply of a prohibited drug.

Section 3 of the Drug Misuse and Trafficking Act defines ‘supply’: 

“Supply includes selling and distributing. It also includes agreeing to supply or offering to supply, keeping or having in possession for supply, sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”

Deemed Supply

As outlined under section 29 of the Drug Misuse and Trafficking Act 1985 (NSW),

A person who has in his or her possession an amount of a prohibited drug that is not less than the trafficable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:

  • a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply or
  • b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.

Put simply, if an individual is found with a greater than the trafficable quantity of a prohibited drug, the prosecution does not need to prove beyond reasonable doubt that you supplied the drug. For the prosecution to establish deemed supply, they must prove,

  • a) The accused was in possession of a prohibited drug
  • b) The quantity of that drug was greater than the trafficable amount

What is a prohibited drug?

The Drug Misuse and Trafficking Act 1985 defines a prohibited drug as any substance, other than a plant, specified in Schedule 1 of the same act. 

The most common prohibited drugs with which individuals are charged with supply are: 

  • Cannabis
  • MDMA
  • Cocaine 
  • Heroin 
  • Methylamphetamine

Penalties for the supply of prohibited drugs in NSW

The offence of drug supply can attract various penalties, depending on the particular illicit substance and the quantity discovered. Under NSW legislation, the most severe punishment for drug supply charges is a maximum fine of $550,000 and/or life imprisonment. 

The Drug Misuse and Trafficking Act 1985 (NSW) outlines the penalties with which those who are charged with drug supply are liable, which increases incrementally as the amount increases. This is outlined under schedule 1 of the act, which defines small, trafficable, indictable and commercial quantities. Those accused of possessing or supplying small or trafficable quantities may be heard in the local court; however, greater amounts must be finalised in the district court.

Small Quantity – A small quantity is typically the least serious drug charge and will generally result in a less serious charge of ‘drug possession’.

Trafficable Quantity – The Drug Misuse and Trafficking Act 1985 states if an individual is found with a quantity equal or more to the ‘trafficable quantity’ set out under the law, they may be charged with drug supply.

Indictable Quantity – The Drug Misuse and Trafficking Act 1985 specifies the quantity of prohibited drugs considered ‘indictable’. These quantities are deemed a serious crime and are usually dealt with by the District Court, resulting in harsher penalties. 

Commercial and Large Commercial Quantities – Under NSW legislation, charges involving the supply of commercial quantities and large commercial quantities are the most serious drug supply charges.

Ongoing Supply Prohibited Drug

Under Section 25A of the Drug Misuse and Trafficking Act, if you are found guilty of ‘ongoing supply’ you are liable to a maximum penalty of 20 years imprisonment and/or a fine of $385 000. 

Ongoing supply occurs when a person: 

  • Supplies a prohibited drug (other than cannabis) 
  • On 3 or more separate occasions in any period of 30 consecutive days, 
  • For financial or material reward

Maximum Penalties

If an individual is charged with the supply or knowing participation in the supply of prohibited drugs, the penalty with which they are liable depends on the quantity and type of drug. 

The table below outlines the maximum penalties applicable to differing quantities in accordance with penalties outlined by the Drug and Trafficking Act 1985 (NSW):

SMALL 30g 0.25g 1g 1g 0.04g 2years imprisonment and/or $5,500 fine (if handled summarily)
TRAFFICABLE 300g 0.75g 3g 3g 0.15g 2years imprisonment and/or $11,000 fine (if handled summarily)
INDICTABLE 1kg 1.25g 5g 5g 0.25g 15 years imprisonment and/or $220,000 fine
COMMERCIAL 25kg 125g 250g 250g 25g 20 years imprisonment and/or a fine of $385,000
LARGE COMMERCIAL 100kg 500g 500g 1kg 100g Life Imprisonment and/or $550,000 fine

Under New South Wales law, if you are charged with drug supply, the court has the discretion to sentence you to any of the following penalties: 

  • Imprisonment 
  • Section 10 – dismissal 
  • Fine
  • Conditional Release Order 
  • Community Correction Order 
  • Intensive Correction Order (ICO)
  • Home Detention 
  • Section 9 – Good behaviour bond

What Happens When You're Charged with Drug Supply?

If drugs have been found in your possession that weigh more than the specified amount for personal use, you will be charged with supply. In these circumstances, you will have to prove that you had the drugs in your possession for a purpose other than supply. 

The court in which your case is heard depends on the amount of drugs in your possession. If you are found with a small or a trafficable amount, your case may be heard in either the local or the district court. However, if you are found with a quantity classified as indictable or greater, your case must be finalised in the district court. 

If your case progresses to trial, you can present your defence before the magistrate or judge and jury. Due to the NSW burden of proof, you will be found not guilty unless the prosecution can prove beyond a reasonable doubt that you have partaken in the elements of the offence. 

Defences for Supply of a Prohibited Drug

If a charge for drug supply proceeds to trial, there are various defences that can be used in court which, if successful, can either result in an acquittal or a lesser sentence. These include, but are not limited to: 

Duress – Defendant was under the threat of death or serious harm to themselves, their family or others 

Necessity –  Operates where circumstances bear upon the accused that induce them to break to law to avoid more dire consequences 

Temporarily holding for another person or Carey defence – can reduce a supply charge to a charge of drug possession

Pleading Not Guilty

If you choose to plead ‘not guilty’ to the charges of drug supply, you disagree that the Police can prove either one or several of the elements of the drug supply charges against you. In this circumstance, you will not be convicted unless the prosecution can prove beyond a reasonable doubt the elements of the offence. 

If you choose to plead ‘not guilty,’ our experienced legal team can assist you throughout the legal process and provide invaluable advice on possible defences to help you achieve the best outcome.

Pleading Guilty

If you choose to enter a guilty plea, this means you choose to accept the charges made against you. In these circumstances, your matter will progress to a sentencing hearing, where a judge or magistrate will determine an appropriate penalty by evaluating the individual circumstances of your case. 

If you choose to plead guilty, an earlier plea most often entitles you to a lesser sentence, with a current maximum discount of 25% for an early plea. Your case will be heard in a sentencing hearing, where the Hamilton Janke team can assist you in achieving the best possible outcome for the circumstances of your case.

Burden of Proof

As a criminal offence, the burden of proof lies on the prosecution to prove, beyond a reasonable doubt, that an individual has engaged in the supply of a prohibited drug.

In order to be convicted, the prosecution must prove beyond a reasonable doubt:

  1. That the accused supplied or took part in the supply of a substance
  2. That the substance was a prohibited drug 
  3. That the accused knew or believed at the time that the substance was a prohibited drug

If the prosecution cannot prove these elements beyond a reasonable doubt, the accused will be found not guilty, and charges will be dropped. 

Need the Best Criminal Lawyer in NSW?

If you are being charged with criminal offences such as supplying prohibited drugs in NSW, it is vital that you seek legal advice and legal representation. Our experienced criminal lawyers will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.

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