Supplying a prohibited drug is an offence under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). It is one of the most serious drug related offences. It is also one of the most common and therefore carries severe penalties upon conviction. Maximum penalties range from imprisonment for 10 years to life.
The definition of supply under the Drug Misuse and Trafficking Act 1985 is extremely wide and includes agreeing or offering to supply even if no drugs were actually exchanged. Supply also includes authorising, attempting or having prohibited drugs in possession for the purposes of supply.
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Police can also charge you with “deemed supply” under section 29 of the Drug Misuse and Trafficking Act 1985. This section allows the prosecution to rely on the quantity of a prohibited drug found in a person’s possession to prove that the drugs were for supply. When the quantity of drugs found in an individual’s possession is above the traffickable quantity, the prosecution can rely on the weight of the drugs to prove that the drugs were for supply. This is commonly referred to as “deemed supply”. The traffickable quantity differs for each drug but as an example, methylamphetamine has a traffickable quantity of 3 grams and ecstasy 0.75grams. See the table below for a more complete list.
What the prosecution must prove
To prove supply, the prosecution must show beyond reasonable doubt that:
- A person supplied, or knowingly took part in a supply, of
- A prohibited drug
A complete list of prohibited drugs is provided in Schedule 1 of the Drug Misuse and Trafficking Act 1985.
Knowingly “take part” is defined in the Act to include:
- Where a person takes, or participates in, any step, or causes any step to be taken, in the process of manufacturer
- Where a person provides or arranges finance for any step in that process
- Where a person provides a premises in which any such step in the process is taken, or permits or suffers any such steps in that process to be taken in the premises of which the person is the owner, leasee or occupier or in the management of which the person participates
It is a defence to a charge of supply if the person can prove that the drugs were in their possession for a purpose otherwise than for supply. This usually involves an accused giving evidence as to why the drugs were in their possession, for example own use or holding.
It is a common misconception that holding drugs for another person, even with the intention of giving those drugs back to the other person, is supply. It is not supply. Nor is it supply to give drugs to another to hold, or to give drugs back to another after that person has given them over to hold. For example, a person who is caught in possession of a quantity of ecstasy who was holding half of the pills for another, with the intention of giving those drugs back to the owner at a later stage, is not guilty of supply merely because there was an intention to give the drugs back to the owner. Carey (1990) 50 A Crim R 163.
Will I go to jail?
Since the early 1990s, it had been thought in NSW that the general rule when sentencing for supply is that for an offence involving the trafficking of drugs in any substantial degree, it is only in exceptional circumstances that a non-custodial sentence will be imposed [Clarke (unreported, NSWCCA, 15 March 1990)]. To express this another way, if the court is satisfied that the offenders conduct constituted trafficking drugs to a substantial degree, the court should impose a custodial sentence unless the offender can satisfy the court there are exceptional circumstances.
The questions then become what is trafficking drugs in any substantial degree and what are exceptional circumstances. Generally, repeated offences of supplying prohibited drugs may constitute trafficking in a substantial degree. However, even one supply can constitute trafficking drugs in a substantial degree if, for example, the evidence indicates that the supply was a result of a sophisticated commercial arrangement. R v Gip; R v Ly  NSWCCA 115.
Abandonment of the ‘General Rule’
However, that ‘general rule’ has recently been qualified and now reversed by the Criminal Court of Appeal in a series of cases, starting with EF v R  NSWCCA 36. Relevantly in EF, Justice Simpson [who was also one of the Judges in Gu], referred to both R v Gu and R v Clark and noted at :
“It seems to have been assumed by all concerned that, because the offence was of drug dealing “to a substantial degree”, non-custodial options were not available”.
“Nothing in any of those decisions obviates the need for sentencing judges to consider the circumstances of each case individually, including the availability (in a practical sense) of alternatives to full-time custody. The starting point of this exercise is s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), which forbids a court sentencing an offender to impose a term of imprisonment unless satisfied, after consideration of all possible alternatives, that no penalty other than imprisonment is appropriate.”
Most recently, the Court of Criminal Appeal in Parente v R  NSWCCA 284 completely abandoned the previous line of cases, with the full court stating:
“For these reasons, the “principle” described in Clark – that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate – should no longer be applied in sentencing for drug supply cases”.
However, this change in approach should not be taken as a sign that courts will approach sentencing for supply offences more leniently. Rather, the focus should be on fundamental sentencing principals such as the objective seriousness of the offence, deterrence, punishment and denunciation, remorse and rehabilitation.
The maximum penalty applicable to an offence of supply prohibited drug depends on the quantity of the drug as well as the whether the drug is cannabis or not. The following table sets out the maximum penalties applicable to the different quantity ranges:
|Small||1 gm||1 gm||0.25 gms||1 gm||2 years imprisonment and/or a fine of $5,500 (if dealt with summarily)1|
|Traffickable||3 gms||3 gms||0.75gms||3 gms||2 years imprisonment and/or a fine of $11,000 (if dealt with summarily) 1|
|Indictable||5 gms||5 gms||1.25 gms||5 gms||15 years imprisonment and/or a fine of $220,000|
|Commercial||250 gms||250 gms||125 gms||250 gms||20 years imprisonment and/or a fine of $385,000|
|Large Commercial||1 kg||1 kg||500 grams||1 kg||Life imprisonment and / or a fine of $550,000|
1.Otherwise the maximum penalty is 15 years imprisonment and/or a fine of $220,000.
There are also increased penalties when the person to whom the drugs are supplied is under 16.
For offences involving more than the commercial quantity of a drug, standard non-parole periods apply. These are a standard non-parole period of 10 years if the quantity is above the commercial quantity, and 15 years if the quantity is above the large commercial quantity.
Supply of cannabis is treated differently to other prohibited drugs. Where the supply involves either cannabis leaf or cannabis plant and the quantity is dealt with on indictment, the maximum penalty is imprisonment for 10 years and/or a fine of $2,200
What is the likely penalty I will receive?
In addition to findings of trafficking in any substantial degree as well as any standard non-parole periods, the penalty imposed for supplying a prohibited drug will depend on a number of factors including:
- The quantity of the drug
- The level of sophistication as well as the period of supply
- If there was any financial gain
- If the supply involved a number of people, the offender’s role in the supply
- Whether the supply was isolated or part of an ongoing course of conduct
Each offender will be sentenced in accordance with all of their relevant circumstances including their remorse, prior record and any evidence of rehabilitation.
For the full range of penalties that can be imposed, see our Sentencing Options page.
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