THE LAW

Drug Supply

Most drug offences of this kind are governed by the Drug Misuse and Trafficking Act 1985 (The Act). In the case of a charge for supply of a prohibited drug, the charge is found pursuant to Section 25 of The Act. The Act reads:

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

What constitutes Supply?

Supply is defined under section 3 of The Act which states:

“supply” 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.

Supply can fall into one of the following four categories:

  1. Caught with a drug on your person;
  2. Caught preparing or manufacturing a drug;
  3. Caught attempting to sell a drug; or
  4. Caught buying a drug for another person.

What Must the Prosecution Prove?

In addition, the prosecution must prove the following beyond reasonable doubt:

  1. That you supplied, or knowingly took part in the supply of a prohibited drug.

Ongoing Supply

The offence of drug supply on an ongoing basis is similar to the offence of drug supply. The offence is governed under the Drug Misuse and Trafficking Act 1985 (The Act) pursuant to section 25A. Section 25A of The Act states:

“A person who, on 3 or more separate occasions during any period of 30 consecutive days supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence”.

What Does The Law Say About Ongoing Supply?

The case of R v Seymour (2001) NSWCCA 272 indicates that the drug need not be the same but there must be proof beyond reasonable doubt that drug supply occurred on at least 3 occasions within 30 consecutive days.

What Must The Prosecution Prove?

The prosecution must prove beyond reasonable doubt the following elements:

  1. That you supplied a substance that is prohibited on 3 or more occasions;
  2. Those occasions occurred within 30 consecutive days; and
  3. You obtained some compensation for them.

QUANTITY AND DRUG AT LAW

Another point which is of importance is the quantity of the drug. The Act provides for different charges in accordance with the weight of the drug. Further, not all narcotics are the same. Meaning, the category of one drug may differ from a ‘lighter’ drug. Thus, the categories that drug supply can fall into are addressed below:

Small Quantity Trafficable Quantity Indictable Quantity Commercial Quantity Large Commercial Quantity
Cannabis 30.0g 300.0g 1,000.0g 25.0kg 100.0kg
Ecstasy 0.8g 3.0g 5.0g 250.0g 1.0kg
Cocaine/Heroin/
Amphetamine
1.0g 3.0g 5.0g 250.0g 1.0kg

MAXIMUM PENALTIES

Drug Supply

The maximum penalty that is applicable for the offence of drug supply is dependent on the quantity of the drug. Please click here for a summary of the categories and weight of each quantity.

  • Small quantity: maximum 50 penalty units or 2 years imprisonment.
  • Trafficable quantity: 100 penalty units or 2 years imprisonment.
  • Indictable quantity: 100 penalty units or 2 years imprisonment if dealt with summarily. If dealt with on indictment, then the maximum penalty applicable is 200 penalty units or 15 years imprisonment.
  • Commercial quantity: 3,500 penalty units or 20 years imprisonment.
  • Large commercial quantity: 5,500 penalty units or life imprisonment.

Ongoing Supply

Unlike the offence of drug supply, drug supply on an ongoing basis is not determined based on quantity. Given that is the case, the maximum penalty applicable is 3,500 penalty units or 20 years imprisonment.

DO YOU HAVE A DEFENCE AT LAW?

Fortunately, there are a number of defences available to you if you are charged with drug supply. This includes the following:

  • You did not supply a prohibited drug;
  • The drug is not a prohibited drug;
  • Supply did not occur within 30 consecutive days (if charged with drug supply on an ongoing basis);
  • Argue you did not receive a reward;
  • You are licensed to supply the drug under the Poisons and Therapeutic Goods Act 1966; and
  • Acting in accordance with a direction given by the Commissioner of Police under section 39RA.

ONGOING SUPPLY – DOES QUANTITY MATTER?

According to the legislation, section 25A seems to be silent regarding the quantity that has the offender has been charged with. The Judicial Commission has voiced the opinion that it based on repetition since one of the elements under this section requires supplying drugs on 3 separate occasions. While this is true, the offence will be considered as a factor when determining the seriousness of the crime. Justice Howie stated in Mirza v R (2007) at NSWCCA 248 at (12):

“It may well be the case that the seriousness of this type of offence will not be diminished simply because the overall amount of drug supplied is small. But it does not follow that the amount of drug supplied is an irrelevant matter in determining the seriousness of the particular offence”.

It is  arguable that quantity does matter as it will fall into the factors that considered when determining the totality  or overall criminality of the offence.

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