Under the Drug Misuse and Trafficking Act 1985 (NSW) (‘DMTA’), you can be criminally liable for the possession, supply, and manufacture of illicit substances. These can include prohibited drugs, prohibited plants, and unprescribed medication, among other substances.
Section 25 of the DMTA makes it an offence to supply a prohibited drug. If a person aids, abets, counsels, procures, solicits, or incites the supply of the drug, that person could be guilty and liable to the same penalty as if they had supplied the drug themselves.
What does the prosecution need to prove?
There are three primary elements the prosecution needs to prove beyond a reasonable doubt, to establish that someone is guilty of a drug supply offence.
- That the accused supplied a substance
- The supplied substance was a prohibited drug
- That the accused knew that what was supplied was a prohibited drug.
Element 1 – What does supply mean?
Under section 3 of the DMTA, the definition of the word supply includes the following:
- To sell and distribute
- Agreeing to supply
- Offering to supply
- Keeping or having in possession for the purposes of supply
- Sending, forwarding, delivering or receiving for the purposes of supply
- Authorising, directing, causing, suffering, permitting or attempting any of the above
What if I didn’t intend to supply it?
In addition to the broad definition of supply provided for under the DMTA, you could also be deemed to have drugs in your possession for the purpose of supply. Meaning, you can be charged with an offence of supply even if you haven’t explicitly carried out any of the above listed conduct. Under section 29 of the DMTA, if you have in your possession, a prohibited drug which is more than a traffickable quantity, you will be deemed to possess it for the purpose of supply. Schedule 1 of the DMTA lists out what the traffickable quantity of each type of prohibited drug is. For example, if someone possesses 3 grams of cocaine (the traffickable amount prescribed under Schedule 1), they will be deemed to possess the drug for the purposes of supply. A charge of deemed supply in this manner can be brought down to a charge of possession if a defendant can prove, on the balance of probabilities, that he or she had the prohibited drug in his or her possession for a purpose other than supply.
Element 2 – What is a prohibited drug?
Common prohibited drugs include Amphetamine, Cannabis, Cocaine, Heroin and MDMA. A complete list of prohibited drugs is found under Schedule 1 of the DMTA.
Importantly, the prosecution does not need to prove that the whole of the substance is made up of a prohibited drug. If any proportion of the substance is a prohibited drug, the whole of the substance will be weighed as if it was that prohibited drug entirely.
What if it isn’t a prohibited drug?
Under section 40 of the DMTA, even if a substance is not a prohibited drug, it can be regarded as such if, for the purpose of it being supplied, it is represented (verbally, in writing or by conduct) as being a prohibited drug.
Element 3 – What if the drug turns out to be a different prohibited drug than I thought?
If someone supplies a prohibited drug believing it to be a specific drug and it turns out that the drug supplied was in fact another drug, the person will likely still be guilty of supplying the drug they believed it to be. For example, if someone supplied a drug believing it to be heroin and on analysis, the drug turns out to be cocaine, the person may still be guilty of supplying heroin.
Additional Elements for Commercial Quantities
For the prosecution to prove a charge of the supply of drugs in a commercial or a large commercial quantity, they must prove two additional elements. This is because a charge of commercial supply attracts a significantly higher penalty.
The additional elements are as follows:
- The prosecution must prove beyond a reasonable doubt that the amount of the drug supplied was not less than a commercial quantity.
- The accused knew or believed (or was aware of a significant or real chance) at the time of supply, that the amount was not less than a commercial quantity.
Unlike element 3 where the subjective belief in the type of drug will tie an offender to the penalty associated to that specific drug, this principle does not uniformly apply to the quantity of the drug. For a charge of the supply of a commercial or large commercial quantity of drug, the prosecution need to prove element 5 beyond a reasonable doubt.
What are some defences?
Duress – It is possible to defend a charge of drug supply if you acted under duress. You would need to prove that there was an extremely serious threat to you or your family which caused you to engage in the criminal activity.
Carey Defence – If you’re charged with supply because you were in possession of a traffickable amount of drugs, you can defend this by proving that you were only in possession of them for the purpose of returning them to their true owner. You would need to demonstrate that the possession was merely momentary or transient.
Personal Use – Another way to defend a deemed supply charge is by proving, on the balance of probabilities, that you intended to use the drugs for personal use (see section 29 of the DMTA).
What are the penalties?
The penalties applicable to drug supply offences vary depending on the quantity of drugs involved in the supply. Schedule 1 of the DMTA identifies four main categories of quantity. The first two quantities listed in the below table can be dealt with in the Local Court (Summarily) or in a higher Court (on Indictment). The higher quantities will always be dealt with in a higher Court given the increased seriousness of the offence.
Importantly, the unit value of each category of quantity will differ depending on the drug involved. For example, a 100kg of cannabis leaf is considered to be a large commercial quantity, whereby only 2kg of cannabis oil will be considered the same.
The following table lists out some of the maximum penalties attached to each quantity. Further details on penalties can be found under sections 30 to 33A of the DMTA.
Table of Penalties
|
Quantity |
Dealt Summarily |
Dealt on Indictment |
|
Small |
2 yrs or 50 penalty units or both |
15 yrs or 2000 penalty units or both |
|
Indictable |
2 yrs or 50 penalty units or both |
15 yrs or 2000 penalty units or both |
|
More than Indictable, less than Commercial |
10 yrs or 2000 penalty units or both for Cannabis |
|
|
15 yrs or 2000 penalty units or both for all other drugs |
||
|
Commercial |
20 yrs or 3500 penalty units |
|
|
Large Commercial |
Life imprisonment or 5000 penalty units or both |
Note: 1. yrs/years refers to the number of years of imprisonment 2. Different penalties apply for where the person supplied to, or the person from whom drugs are procured, is under the age of 16. Please refer to the DMTA for more details.
FURTHER ADVICE:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice, please reach out to us and speak to one of our lawyers at Hugo Law Group.
Umar Ikram, Lawyer
