22 / 9 / 2023

Supply Prohibited Drug Offences

What is a drug supply offence?

For the NSW offence of supply prohibited drug, the term ‘supply’ captures a broad range of conduct and is not limited to a person who provides or sells prohibited drugs. You may be charged with a supply offence if you:

  1. offer to supply drugs to another person.
  2. attempt to supply drugs to another person.
  3. have drugs in your possession for the purpose of supplying those drugs to another person.
  4. participate in any step in the process of supply.
  5. provide or arrange finances for any step in the process of supply.
  6. allow another person to use your house for any step in the process of supply.
  7. have possession of a traffickable quantity of a prohibited drug (known as ‘deemed’ supply).

The Courts have determined that there is no principle that a genuine agreement to supply drugs is to be regarded as any less serious than a proven act of supply.

Ongoing supply

NSW also has a further separate offence of Ongoing Supply if it is proved that you supplied a prohibited drug, other than cannabis, for financial reward on 3 or more separate occasions in 30 days. It is not necessary for the same drug to be supplied on each occasion.

Ongoing supply is generally considered more serious than other supply offences. The offence is directed at criminalising the business operation of supplying drugs, so the repetition, organisation and system of the supply are relevant to the seriousness of the offence, as are the individual quantities supplied.  Where an operation is highly organised or sophisticated, the offence will be assessed as more serious.

Offences of ongoing supply will often result in a full-time custodial sentence unless there are exceptional circumstances.

Digital Evidence Access Orders

It is commonplace for persons who are involved in drug supply to use the dark web and encrypted applications to attempt to conceal criminal activity. This technology has made it increasingly difficult for law enforcement to obtain evidence relating to drug operations.

In response, the state and federal government have implemented laws to allow police to issue digital evidence access orders. Under these laws, police officers who suspect a person is using a mobile device for criminal purposes can apply to a magistrate for a Digital Evidence Access Order, which requires the owner of the device to provide any necessary information to open the device for police inspection.

It is an offence punishable by 5 years imprisonment to refuse to comply with a Digital Evidence Access Order.  Further, if you are on bail for a supply offence, failure to comply with a Digital Evidence Access Order may constitute a breach of your bail conditions.

You should seek urgent advice from an experienced criminal lawyer if you are issued with a Digital Evidence Access Order.

Factors relevant to the Court’s assessment of the seriousness of a supply offence

Whilst the quantity and purity of the supplied drugs are relevant to the seriousness of an offence, greater weight is placed on a person’s role in the supply. This involves an assessment of the steps taken by the person to contribute to the supply.

A person may be considered a principal in the offending where they contribute to the cost of setting up the operation, stand to share in the profit, contribute to the management of the operation and have a role in decision making. The criminality of the principal is generally considered to be higher than that of the courier or warehouseman.

It is accepted that a user / dealer who sells drugs primarily to feed his or her own habit is at a lower level of criminality than a person who supplies drugs for financial reward. However, the weight that can be placed on a person’s drug addiction diminishes when the operation exceeds street level type dealing.

Assistance to authorities

A person who provides information to police that leads to the detection of principals in a drug operation can expect to receive a significant discount to their sentence.  This is because the community interest in disrupting drug supply and identifying large-scale operations is considered more important than the imposition of heavy sentences.

It is important to speak with an experienced criminal lawyer before providing assistance to police to ensure your interests are protected, and that you receive the appropriate credit for the assistance.

Penalty

Drug supply is considered a very serious offence.  The maximum penalty that can be imposed for a supply offence will depend on the quantity and type of the drug supplied.

Whilst there are a range of penalties that are available to the Court when sentencing a person for a supply offence, including fines and good behaviour bonds, there is a real risk of imprisonment if you plead guilty or are found guilty of supplying drugs.

Maximum penalties

For offences involving the supply of cannabis, the maximum penalties are below:

Offence Maximum penalty
Supplying cannabis – less than a commercial quantity Imprisonment for 10 years and/or 2000 penalty units
Supplying cannabis – commercial quantity Imprisonment for 15 years and/or 3,500 penalty units
Supplying cannabis – large commercial quantity Imprisonment for 20 years and/or 5,000 penalty units

For offences involving the supply of drugs other than cannabis, the maximum penalties are below:

Offence Maximum penalty Standard non-parole period
Supplying prohibited drugs – less than a commercial quantity Imprisonment for 15 years and/or 2000 penalty units
Supplying prohibited drugs – commercial quantity Imprisonment for 20 years and/or 3,500 penalty units 10 years imprisonment
Supplying prohibited drugs – large commercial quantity Imprisonment for life and/or 5,000 penalty units 15 years imprisonment
Supplying prohibited drugs on an ongoing basis Imprisonment for 20 years and/or 3500 penalty units

Lindsay Stankovic, Senior Lawyer