Drug offences can be considered amongst the most serious offences in the eyes of the Criminal Courts. When it comes to drugs and the law, it is important to remember the varying distinction between possession, dealing and supply of illegal drugs, whilst also bearing in mind the individual circumstances of the case at hand.

Looking through Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), the general pattern seen is that higher quantities of drugs will attract higher penalties. With this noted, the Act shows that close to 370 types of drugs are prohibited for possession or supply in New South Wales, which includes commonly known drugs such as cannabis, methylamphetamine (‘ice’), heroin, and cocaine.

Possession

There are different prescribed amounts set out in Schedule 1 of the Act which identify as to what constitutes a traffickable, small, indictable, commercial or large commercial quantity of a certain prohibited drug. Possession of a prohibited drug is a relatively straight forward principle under the Act, in the sense that a person who is found to have a prohibited drug on them will be guilty of an offence. Generally, a person will only be charged with possession of a prohibited drug in cases where there are only enough drugs found for personal consumption, and that there is no evidence of drug manufacturing or dealing.

If you are charged with possession of a prohibited drug, you may be subject to a fine of $2,200 and/or 2 years imprisonment. Alternatively, an offence with respect to prohibited plants will attract a penalty ranging from a $5,500 fine and/or imprisonment for 2 years, to a fine up to $55,000 and/or imprisonment for 20 years.

A further point to consider with respect to possession is that a person who is found to have a certain amount of a prohibited drug which is more than the prescribed traffickable quantity under Schedule 1 will be deemed to have the drugs in their possession for the purposes of supply. In such cases, the burden of proof will fall upon the accused in order to show that the drugs were in their possession for reasons other than for supply. This will have to be proven on ‘the balance of probabilities’ (more than 51%). This part of the legislation allows the police to lay a charge for supply of a prohibited drug, as well as a charge for possession as a back-up charge.

Supply

A charge of drug supply is generally given when drugs are dealt in large quantities. In the alternative, a charge of ‘deemed drug supply’ can be given when the amount of drugs is found to be more than a traffickable quantity. The Act states that if a person supplies, or takes part in the supply of a prohibited drug, then they will be guilty of an offence. The term ‘supply’ has quite a broad definition under The Act, as it can include acts of both selling for money, and distribution of the prohibited drug where no money is involved. As also stated above, ‘supply’ can also be interpreted as having possession for the purposes of supplying, sending, forwarding, delivering or receiving prohibited drugs.

Through a practical example, you can be found to be in possession of drugs for the purposes of supply even if you are simply holding drugs for some friends (given that the amount of drugs you are holding is above the relevant applicable traffickable quantity), and will be passing them on to them at a later stage, whether or not the transaction is made in exchange for money.

The traffickable quantity of a drug is not as much as a person may otherwise think; 3 grams of cocaine, heroin or methylamphetamines, 0.75 grams of MDMA (approximately 2 to 3 pills) or 300 grams of cannabis leaves will be an adequate amount of drugs to satisfy a charge for supply. These amounts are typically less than what some party-goers will consume or otherwise use in a single night of festivities – therefore, it is completely possible to be charged with supply, even if the purpose of having the drugs is for personal use only.

On the other hand, police can place a charge for ‘deemed supply’, based purely on the amount of drugs that are found to be in your possession. However, a person can still be charged with deemed supply even if they did not have anything that suggests that they were actually supplying drugs, such as large amounts of money, plastic resealable bags, scales and measuring equipment etc.

Another point to consider with respect to supply is that a person who makes plans with another individual to supply a prohibited drug will be liable to the same punishment and penalties, as though that person had actually committed the offence. Put another way, a person can be found guilty of an offence for supply if they have plans to drive their friend who is in possession of the drug to a certain location, but does not commit to their plan.

The associated penalties for supply are significantly harsher then a penalty for possession of a prohibited drug. A finding of guilty on a charge for supply in the District Court can attract a fine of up to $220,000 and/or an imprisonment term of 15 years. Where the offence relates to a cannabis plant or cannabis leaf, person can be subject to a fine of up to $220,000 or an imprisonment term of 10 years.

If you have a drug matter give us a call (02) 8059 7121

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