The manufacture and production of prohibited drugs is an offence under section 24 of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment from 2 years to life.
A complete list of prohibited drugs is provided in Schedule 1 of the Drug Misuse and Trafficking Act 1985.
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What the prosecution must prove
To prove this charge, the prosecution must show beyond reasonable doubt that:
- A person is manufacturing or producing prohibited drugs, or a person was aware of and took part in manufacturing or producing prohibited drugs; and
- The substance that the person manufactured, produced or assisted in manufacturing or producing was a prohibited drug.
The term “manufacture” is defined under Section 3 of the Drug Misuse and Trafficking Act 1985 and includes “the process of extracting or refining the prohibited drug”. This definition covers a wide range of activities, and it is not necessary that the activities fit into either “extracting” or “refining”. These are only two of the possible activities that may constitute manufacture.
Knowingly “take part” is defined in the Drug Misuse and Trafficking Act 1985 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
This covers a wide range of activities, and it is therefore not necessary for a person to actually be physically engaged in the process of manufacturing a prohibited drug. By knowingly allowing the manufacture to occur, for example, in premises for which the person is the owner, that person is potentially “knowingly taking part” in the manufacturer of a prohibited drug.
Defences
You may have a defence if the court is satisfied that you did not knowingly take part in manufacturing or producing prohibited drugs, or if the substance that was manufactured or produced was not a prohibited drug.
Will I receive a criminal record, and could I go to jail?
Manufacture and Production of Prohibited Drugs is a serious drug related offence and in most cases those found guilty of this offence can expect a conviction and the imposition of a substantial penalty. Upon conviction, you will receive a criminal record and are liable to imprisonment. However, the maximum term of imprisonment depends upon the type of drug and the quantity, as follows:
| Quantity | Cocaine | Methylamphetamine | Ecstasy | Heroin | Maximum Penalty |
| 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 |
| 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 gms | 1 kg | Life imprisonment and / or a fine of $550,000 |
Section 24(1A) provides for a separate offence where a person produces or manufactures a prohibited drug and exposes a child to the manufacturing process. The maximum penalty for that offence is a period of imprisonment for 18 years.
Where the amount involved is above the commercial quantity, a standard non-parole period of 10 years applies. Where the amount is above a large commercial quantity, a standard non-parole period of 15 years applies.
The penalty that will be imposed will depend on a number of factors including:
- The quantity of the drug involved
- The scale and method of manufacture, including whether it was part of a sophisticated commercial arrangement
- Whether there was any financial gain or whether the offending was motivated by financial gain or greed
- If the manufacturing operation involved a number of people, the offender’s role in the manufacturing process
Factors including the offender’s remorse, evidence of rehabilitation and any other subjective factors may also be relevant at sentence.
For the full range of penalties that can be imposed, see our Sentencing Options page.
For a detailed, free initial consultation, contact one of our criminal law specialists.