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A drug offence is an offence that involves possessing, supplying, cultivating or manufacturing a prohibited drug. If you have been charged with a drug-related offence, you could face heavy punishment such as full-time imprisonment. The type and quantity of the prohibited drug  will determine what offence you are charged with and the penalty that may be imposed. There are many types and quantities of commonly known, and lesser known, prohibited drugs under the Drugs Misuse & Trafficking Act 1985 (NSW), specifically Schedule 1 of that Act.


While drug offences are commonly prosecuted under the Drugs Misuse and Trafficking Act 1985 and the Commonwealth Criminal Code 1995, it is also possible to commit an offence under the Poisons and Therapeutic Goods Act 1966 (NSW).


Possessing a Prohibited Drug

It is an offence under the Drugs Misuse and Trafficking Act 1985 to possess a prohibited drug. The offence carries a penalty of a maximum fine of $2,200 and/or imprisonment for 2 years. The offence is commonly prosecuted in the Local Court, however, it can appear as a back up charge to more serious drug offences prosecuted in the District Court. In order for you to be found guilty of possessing a prohibited drug, the prosecution must prove beyond reasonable doubt that you had possession of the prohibited drug. Proving possession means that you physically had the drug in your possession and control, and you were aware or had knowledge that the drug or drugs were in your possession.


Supplying a Prohibited Drug

It is an offence under the Drug Misuse and Trafficking Act 1985 for a person to knowingly take part in the supply of a prohibited drug. The maximum penalty for supply prohibited drug is a fine of up to $220,000 and/or imprisonment for 15 years. If the matter is presided upon in the Local Court, without election for the matter to be heard in the District Court, the maximum penalty is 2 years imprisonment.


Within the Drug Misuse and Trafficking Act 1985, there is a Schedule which details the indictable quantity for each type of drug. When the possession of drug exceeds the indictable quantity, as noted within the Schedule, the matter becomes a strictly indictable matter which will be finalised before the District Court. In all other matters, the proceedings will be dealt with in the Local Court unless an election is made.


What is Deemed Supply? 

Section 29 of the Drug Misuse and Trafficking Act 1985 contains a provision that deems possession of a drug to be for the purpose of supply where the amount of the drug is not less than the “traffickable quantity". This section is applied differently depending on the type of drug that is the subject of the criminal charge. If the quantity of the drug you possess is a traffickable quantity (or more), then you may be charged with “deemed supply”, where it is deemed that the possession of such a quantity of drugs would not, in the normal circumstances, be for personal use only. The onus then falls back on the defence to prove that the possession was for personal use only and not for supply.


What is Ongoing Supply?

Ongoing supply is a more serious drug-related offence under section 25A of the Drug Misuse and Trafficking Act 1985, which creates an offence of supplying drugs on an ongoing basis. The offence does not apply to cannabis.


Section 25A(1) provides “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.” The maximum penalty is 3,500 penalty units or imprisonment for 20 years, or both.


To be convicted, the police must prove, beyond reasonable doubt, that you knowingly took part in the supply of a prohibited drug. "Supply" includes:

  • to sell and distribute; 

  • agreeing to supply;

  • offering to supply;

  • keeping or having in possession for supply; 

  • sending, forwarding, delivering or receiving for supply;

  • authorising, directing, causing, suffering, permitting; or

  • attempting any of those acts or things.


What criminal defences are available for a drug supply charge?

There are a few defences that may be raised to challenge a prosecution for the offence of supplying a prohibited drug. Once such defence is the “Carey” defence, which provides that “supply” does not include temporary possession of a prohibited drug with the intention of returning it to the owner of the drug: R v Carey (1990) 20 NSWLR 292.


Alliston v R [2011] NSWCCA 281 holds that Carey can apply to part of the drug in the possession of the accused, so that the “defence” may result in the accused being found not guilty of supplying a large commercial quantity or a commercial quantity but guilty of a lesser offence such as supply simpliciter.


Another defence that may be available to the accused is challenging the “amount” or “quantity” that is asserted in the criminal charge. There are times when the drug in possession comprises of other compounds. A pharmacologist expert report can usually confirm the precise quantity of the illicit substance. Alliston is an example of a factual situation where it is necessary to emphasise that the Crown must prove beyond reasonable doubt, not only that the accused was in possession of a prohibited drug, but also the amount of that drug.


As with any criminal offence, the prosecution must prove all the elements of the offence beyond a reasonable doubt. If you have a defence available, the prosecution must negate that defence beyond reasonable doubt if the Court is to find you guilty. If you are charged with a drug related offence, please contact KF Lawyers to arrange for a consultation to discuss potential defences and range of sentences that are available in your situation.

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