Drug Offences in NSW

Poppy Morandin.

A recent report from the Australian Institute of Criminology analysing the distinction between the ‘social’ and commercial supply of drugs has outlined the need for a review into the reliance on ‘threshold quantities’ in differentiating between drug users and dealers.

In New South Wales, threshold quantities are used to indicate the criminality of supply offences and distinguish between traffickers and users.

Threshold quantities range from small, traffickable, indictable, commercial, and large commercial quantities.

The quantity of the prohibited drug will determine maximum penalties applicable, and whether the matter is dealt with summarily in the Local Court, or in the District Court.

A table corresponding threshold quantities to prohibited drugs is found within Schedule 1 of the Drugs Misuse and Trafficking Act 1985 (NSW).

The report outlines how reliance on threshold quantities can make it difficult for courts to recognise distinctions between social and commercial supply.

In distinguishing between these ‘different’ types of supply, it describes social supply as those who supply to friends and acquaintances for little or no profit and are primarily users themselves.

It is notable that social supply is now widely accepted as a distinctive form of drug distribution, which can be separated from profit motivated commercial drug supply.

Typical characteristics of social supply include that it normally involves recreational drugs such as MDMA, cannabis, cocaine and hallucinogens, and the sale of small quantities of drugs from a ‘bulk’ purchase, to fund personal drug use or make a small amount of profit to cover risk and effort.

A common group includes individuals who do not consider themselves to be ‘drug dealers’ and often supply with little awareness of the seriousness of sentencing tariffs.

Alternatively, social supply offenders are often heavy users who sell drugs for a small amount of profit or gain, which goes towards their own drug dependency.

In analysing the characteristics of offenders sentenced for supply matters, 47% of offender were deemed ‘drug dependant’, whereas 18% were non-users.

The report found that a “small but significant number of cases” could be categorised as social supply.

It found how courts displayed some evidence of accommodating social supply characteristics in sentencing decisions.

This was through acknowledging where the defendants did not benefit financially from the transaction and possessed the drugs for personal use and use by friends.

In such cases, these type of matters, when compared with commercially oriented trafficking, were suggested to be located at the ‘very lowest end of the [supply] scale’.

Despite courts recognising this distinction, it has been found that heavy users and those involved in social supply often ended up having their cases dealt with in superior courts due to the quantities involved.

This therefore increases the maximum penalties faced.

Judicial officers interviewed as part of the report, described the use of threshold quantities: “at worst, ‘out of touch’, ‘stupid’, ‘arbitrary’, ‘misleading’ or ‘meaningless’, saying ‘they don’t keep pace with the times’.”

In exploring the limitations of thresholds, it found that they are often not an accurate or reliable guide to the level of dealing involved.

Despite Judicial officers noting that they try to keep this in mind, they noted how: “the legislation tells us…what the maximum is for each threshold, so we have no choice about that.”

Alternatively, Charles Henderson of the NSW Users and AIDS Association (NUAA) labels the distinction between social and commercial supply as a ‘false dichotomy’.

“Social supply is to differentiate or attempt to provide some sort of delineation between drug supply through friends and connections rather than the “stock standard” drug pusher/ seller.

Overwhelming evidence points to the use and procurement of drugs to be pretty amorphous and fluid with using and selling/ offering/ swapping/ giving of drugs as part of the normal milieu.”  he explained.

However, Mr Henderson echoed the AIC’s calls for a review of the use of threshold quantities of prohibited drugs.

“Trying to determine quantity for supply and or use is fraught w difficulty and is completely arbitrary… My opinion of the thresholds is that they are without substance, and it perpetuates the issues overall and exacerbate the myriad of problems facing the incarceration of users and the black market itself.” he noted.

Henderson argues that the report, in attempting to prompt more consistent and proportionate sentencing practices to social supply, doesn’t address what is at the heart of the issue.

“The laws need reforming in a much more fundamental way than tinkering at the edges with commercial and social supply distinctions – and methods such as diversion are discriminatory and racist and unequal at their very core. A deliberate process moving from prohibition to regulation is the way forward.

The current programs and strategies do not do enough because they do not address the fundamental inequity and the human rights issues at the heart of the drug war. These systems maintain status quo and are applied so unequally. These attempts keep the drug using issue within criminalised/ ing frameworks and will not be any silver bullet to any degree.”

Drug Offences in NSW

A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence, pursuant to section 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) (the Act).

As outlined in section 3(1) of the Act, supply includes:

• selling and distributing,
• agreeing to supply,
• offering to supply,
• keeping, or having in possession for supply,
• sending, forwarding, delivering, or receiving for supply, or
• authorising, directing, causing, suffering, permitting, or attempting any of the above act.

Section 25(2) applies to those who supply quantities which are not less than a ‘commercial’ quantity and carries an applicable maximum penalty of a fine of $385,000 and/or 20 years imprisonment is applicable.

In the case of cannabis plant or cannabis leaf, the maximum jail term reduces to 15 years, as outlined in section 33(2).

If the quantity involved is not less than the large commercial quantity, the maximum penalty rises to a $550,000 fine and/or life imprisonment.

In the case of cannabis plant or cannabis leaf, the maximum jail term reduces to 20 years.

Offences involving commercial and large commercial quantities are ‘strictly indictable’, means that they cannot be dealt with in the Local Court and therefore will be heard before the District Court.

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