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Supply Prohibited Drug

Supply Prohibited Drug

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 common drug offences and the maximum penalties range from imprisonment for 10 years to life.

The definition of supply under the Drug Misuse and Trafficking Act 1985 is extremely broad.  It includes agreeing or offering to supply even when nothing is exchanged. Supply also includes authorising, attempting or having prohibited drugs in possession for the purposes of supply.

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.

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

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.

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)].

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 [2015] NSWCCA 36.

Most recently, the Court of Criminal Appeal in Parente v R [2017] 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.

Maximum penalties

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:

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

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.

Cannabis

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.