Supply Prohibited Drug
The offence of supplying a prohibited drug is very serious and can attract a lengthy term of imprisonment. When a person is charged with an offence involving drug supply, they are charged with supplying a small, trafficable or commercial quantity of a particular drug. The quantity of the drug and the type of drug involved will largely determine the penalty range that applies. This page deals with supply prohibited drug offences in New South Wales.
Legislation
Supplying a prohibited drug is an offence under section 25 of the Drug Misuse and Trafficking Act 1985. That provision makes it an offence to knowingly take part in the supply of a prohibited drug. It also establishes separate offences consisting of supplying a prohibited drug to a person aged under 16 and supplying more than a commercial quantity of a prohibited drug.
Section 29 of the Drug Misuse and Trafficking Act 1985 makes it an offence to supply more than a trafficable quantity of a prohibited drug.
Small, trafficable, indictable, commercial or large commercial quantity
Schedule 1 of the Drug Misuse and Trafficking Act sets out the quantity of each prohibited drug that constitute a small, trafficable, indictable, commercial and large commercial quantity. These are set out in the table below.
| Small quantity | Trafficable quantity | Indictable quantity | Commercial quantity | Large commercial quantity | |
|---|---|---|---|---|---|
| Cannabis | 30g | 300g | 1000g | 25kg | 100kg |
| Ecstasy | 0.8g | 3g | 5k | 250g | 1kg |
| Cocaine/heroin/amphetamine | 1g | 3g | 5g | 250g | 1kg |
Penalties
The maximum penalty that applies to an offence of supply of prohibited drug to an adult – from a small quantity up to the indictable quantity – is 15 years imprisonment and a fine of up to $220,000.
If the supply was to a child under 16, the maximum penalty is 25 years imprisonment and a fine of up to $462,000.
The maximum penalty that applies to an offence of supply a commercial or large commercial quantity of a prohibited drug depends on the drug involved and the quantity. These offences carry standard and minimum non-parole periods. For example, a person found guilty of supplying a large commercial quantity of cocaine would face a maximum penalty of life imprisonment, with a standard non-parole period of 15 years, and a fine of up to $550,000.
What Actions Constitute Supplying A Prohibited Drug?
The definition of ‘supply’ in the Drug Misuse and Trafficking Act is very broad. It includes to “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.”
A person may be charged with supply of a drug if they were involved in any part of the process of supply. A person does not have to receive money for drugs to be found guilty of a supply offence, not do they have to carry out any actual acts of supply. A person may be charged with supply if they receive or possess prohibited drugs that they intend to supply in the future. Likewise, an offer or agreement to supply prohibited drugs will be sufficient to prove a supply.
A person can also be charged with supply for what is referred to as a “social supply” – for example giving drugs to someone or sharing drugs with others. In addition, if a person is in possession of a trafficable quantity of a drug, it is presumed that they are in possession of the drug for the purposes of supply.
Possible Defences
It is a defence to a charge of supplying a prohibited drug if the accused is:
- licenced or authorised to supply the drug under the Poisons and Therapeutic Goods Act 1966;
- acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study; or
- acting in accordance with a direction given by the Commissioner of Police under section 39RA.
Jurisdiction
The court that will hear your matter depends on the quantity of the drug supplied.
Where the amount exceeds a commercial quantity, the offence is strictly indictable which means that it cannot be finalised in the Local Court.
Where the amount does not exceed a commercial quantity, this matter is a Table 1 offence which means that either the DPP or an accused can elect to have the matter dealt with in the District Court. If no election is made, the matter will be finalised in the Local Court.
Where the amount does not exceed a small quantity, this matter is a Table 2 offence which means that the DPP can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.
Convictions for supply prohibited drug
The consequences of a conviction for a drug offence can be serious.
A conviction for drug supply may jeopardise a person’s employment and impact their ability to travel overseas in the future. Moreover, a conviction for a drug supply charge can completely rule out certain career paths such as teaching and a range of government employment options.
It is important to get legal advice at an early stage to ascertain precisely what the consequences of a conviction may be and whether you have a defence to the charge.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Michelle Makela
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...