The difference between having drugs and being a drug supplier in NSW – and why the line is harder to see than you think
Most people understand that carrying drugs is illegal. Far fewer people understand that in NSW the difference between a possession charge and a supply charge – the difference between a maximum of 2 years and a maximum of 15 years – can turn entirely on how much you are carrying, not on what you intended to do with it. NSW drug law uses a concept called deemed supply, and it means that if you are found with more than a specified quantity of a drug, the law presumes you intended to supply it. That presumption applies whether or not any money changed hands, whether or not you had any arrangements with another person, and whether or not you had any intention of supplying anyone at all.
The deemed supply provisions under the Drug Misuse and Trafficking Act 1985 (NSW) operate as a reversal of the normal burden of proof. Where possession above the traffickable quantity is established, the prosecution does not need to prove intent to supply. The accused must prove, on the balance of probabilities, that the drug was not for the purposes of supply. This is a real evidentiary burden, and many people who believe they will be able to simply tell the court “it was all for me” find that this explanation is not nearly enough on its own.
The quantity tier system and what it means
The Drug Misuse and Trafficking Act establishes five quantity tiers for each prohibited drug: small quantity, traffickable quantity, indictable quantity, commercial quantity, and large commercial quantity. The tier in which a seized quantity falls determines what charge can be laid and which court will hear it. The tiers vary significantly by drug – the thresholds are calibrated to the potency and typical unit size of each substance.
For methylamphetamine (ice), the thresholds are: small quantity 1 gram, traffickable quantity 3 grams, indictable quantity 5 grams, commercial quantity 250 grams, large commercial quantity 1 kilogram. For cocaine: small quantity 1 gram, traffickable 3 grams, indictable 5 grams, commercial 250 grams, large commercial 1 kilogram. For MDMA (ecstasy): small quantity 0.25 grams, traffickable 1.25 grams, indictable 3 grams, commercial 0.5 kilograms, large commercial 1 kilogram. For cannabis: small quantity 30 grams, traffickable 300 grams, indictable 1 kilogram, commercial 25 kilograms, large commercial 100 kilograms.
The traffickable quantity is the critical threshold for deemed supply. Once the quantity seized exceeds the traffickable quantity, the deemed supply presumption activates. A person found with 4 grams of methamphetamine – just 1 gram above the traffickable threshold – is presumed under the law to have possessed it for supply, and the maximum penalty changes from 2 years to 15 years. That shift occurs automatically, without the prosecution needing to prove a single thing beyond the weight of what was seized.
How police establish quantity and why disputes arise
When police seize a substance believed to be a prohibited drug, the substance is submitted to the NSW Police Forensic Chemistry Centre for analysis. A forensic chemist examines the substance, tests it for purity, and produces a certificate showing the total weight of the substance and the weight of pure drug present. The certificate is admissible as evidence of the drug type and quantity.
The total weight, not the pure weight, is typically used for quantity tier purposes unless the legislation specifies otherwise. This matters because a substance seized as 4 grams of methamphetamine might contain only 60% pure drug – but the deemed supply calculation runs on the 4 grams total. Disputes about quantity can arise where: the scales used were not properly calibrated, the substance was mixed with non-drug cutting agents and the certificate does not properly isolate the relevant component, or the weighing occurred in circumstances that can be challenged.
The deemed supply presumption – how to rebut it
Rebutting the deemed supply presumption requires positive evidence that the drug was possessed for personal use rather than supply. The Judicial Commission of NSW has confirmed that the presumption is rebuttable but that the burden on the accused is real and must be met by actual evidence. Courts consider: the accused’s documented history of drug dependency and personal use, evidence from medical practitioners, drug counsellors, or treatment services about the accused’s consumption patterns, the form in which the drug was packaged (bulk rather than individual deal bags), the absence of relevant indicators of supply such as scales, deal bags, or multiple phones, the amount of cash found with the drug, and any admissions or denials made at the time of arrest.
A person who uses methamphetamine daily, who can establish their daily use amount through treatment records or witness evidence, and who can show that the quantity seized represented no more than a personal supply for a short period stands a better chance of rebutting the presumption than someone who cannot provide any contextual evidence about their use patterns. But the submission alone – “I use a lot, it was all for me” – standing alone without supporting material, will usually not be enough.
Independent evidence of supply – how police prove it without relying on quantity alone
Even where a person is found with a quantity below the traffickable threshold, police can still charge supply based on direct evidence of dealing. This is independent of the deemed supply mechanism – it is a straightforward proof that the accused was engaged in selling or providing drugs to others. Direct evidence of supply commonly includes: messages on the accused’s phone discussing prices, quantities, and arrangements to meet buyers; financial records showing regular cash deposits inconsistent with legitimate income; the presence of multiple deal bags or packaging equipment; scales; records of multiple separate transactions; or statements from alleged customers.
NSW Police digital forensic capabilities are now sophisticated enough that device extraction from a phone will typically recover messages even after deletion, search histories, app usage records, and call logs. A drug investigation that begins with a relatively small seizure can escalate to a supply charge very quickly once the digital evidence from the seized device is examined.
Supply on an ongoing basis – a separate and more serious charge
Where police can establish a pattern of supply over time rather than a single transaction, a charge of supply of a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act becomes available. This offence is committed where a person supplies a prohibited drug on 3 or more separate occasions over a period of 30 days. The maximum penalty is 20 years’ imprisonment, 5 years more than standard supply. Ongoing supply charges are typically built from digital evidence – message threads showing repeated transactions over a period – and often follow from phone interceptions or the execution of a search warrant that produces historical device data.
Penalties across the quantity tiers
Simple possession (small quantity or below): maximum 2 years’ imprisonment and/or fine of $2,200. Supply of a prohibited drug (general): maximum 15 years. Supply on an ongoing basis: maximum 20 years. Supply of a commercial quantity: maximum 20 years (some drugs attract a 25-year maximum in the District Court). Supply of a large commercial quantity: maximum life imprisonment. These maximum penalties are enforced in the appropriate court: supply matters below the indictable quantity threshold can be dealt with summarily in the Local Court, but commercial and large commercial quantity matters are strictly indictable and proceed to the District or Supreme Court.
The NSW Sentencing Council data shows that supply matters above the indictable quantity regularly attract full-time custody sentences in the District Court, even for first offenders with otherwise good backgrounds. The quantity and the culpability role of the accused within any supply operation are the two primary drivers of sentence.
Mistakes people make in the early stages
The most damaging early mistakes in drug cases fall into a consistent pattern. First, providing an explanation to police before obtaining legal advice – any account given in the confusion of arrest, including attempts to minimise or contextualise the finding, becomes part of the police brief and can be used to undermine a defence that might otherwise have been available. Second, consenting to searches without understanding the legal basis for that search – NSW Police have defined powers under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and whether those powers were properly exercised is worth examining. Third, failing to understand that seemingly minor quantities can cross into deemed supply territory and treating a finding of 4 grams as though it is essentially the same as a finding of 1 gram.
Contact Us
At National Criminal Lawyers, we handle drug matters ranging from single possession charges through to large commercial supply prosecutions. The early advice stage is where the most important decisions are made – about what to say, what evidence can be challenged, and whether a deemed supply charge can be contested effectively. Do not wait until your court date to seek advice.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
