Possession of Drugs & Drug Supply Charges NSW Complete Guide

Table Of Contents
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  1. Key Takeaways
  2. Common Drug Quantity and Classifications
  3. Possession of Drugs NSW
  4. Deemed Drug Supply NSW
  5. Ongoing Supply Drugs NSW

Key Takeaways

Drug possession and supply charges carry penalties ranging from a $400 fine to life imprisonment depending on the type of drug charge and drug quantity category. This article outlines common drug possession and drug supply quantities, charges, section 10 non-conviction penalties and how to win a drug possession & drug supply case, including drug possession and drug supply sentencing guidelines, and more.

While this article is a complete guide written by our very own drug lawyers Sydney based, it’s strongly recommended to get tailored and personalised advice if you’re facing a drug charge.

Common Drug Quantity and Classifications

Common Drug Quantities and Classifications Table
Prohibited Drug or Plant Small Quantity Trafficable (Deemed Supply) Quantity Indictable Quantity Commercial Quantity Large Commercial Quantity
Cannabis Leaf 30 g 300 g 1000 g 25.0 g 100 g
Cannabis Oil 2 g 5 g 10 g 500.0 g 2 kg
Cannabis Resin 5 g 30 g 90 g 2.5 g 10 kg
Cocaine 1 g 3 g 5 g 250.0 g 1 kg
Heroin 1 g 3 g 5 g 250.0 g 1 kg
Lysergic acid 0.0008 g 0.003 g 0.005 g 0.5 g 2 g
Methylamphetamine 1 g 3 g 5 g 250 g 1 kg
MDMA/Ecstasy 0.25 g 0.75 g 1.25 g 125 g 500g

Possession of Drugs NSW

Penalties for Drug Possession

Penalties for drug possession attract up to a 2-years imprisonment sentence for possession of drugs in NSW, or a $2,200 fine, or both. This includes a criminal conviction.

The maximum sentence for possession of drugs is rarely imposed. A conviction for possession of drugs NSW offence can be avoided even after pleading guilty to it in court if the court imposes a section 10 penalty on your sentence.

Drug possession penalties in NSW include a section 10 non-conviction explained below.

Section 10 Drug Possession

There are various types of drug possession penalties in NSW, including a section 10 or Conditional Release Order non-conviction penalty, which can be imposed after pleading guilty to a charge of possessing a prohibited drug in NSW.

Getting a section 10 drug possession penalty on sentence for drug possession charges in NSW will result in no criminal record against you.

Those facing second or first-time drug possession charges in NSW do not automatically get a section 10 non-conviction in court. To achieve section 10 for drug possession charges, it requires solid and thoughtful preparation tailored around your case and not a generic approach. It’s important to have an in-depth understanding and knowledge of drug possession laws, the court processes, and familiarity with Judges and Magistrates.

For accurate tailored advice, it’s recommended to speak to a drug possession lawyer.

Some main factors the Magistrate or Judge will consider when deciding whether or not to give a section 10 sentence for drug possession charges includes the following:

  • Your good character.
  • Your age and health.
  • Your mental illness if any, and if so, whether it contributed to you committing the offence.
  • The absence of having a prior criminal record.
  • Trivial nature of the offence.
  • Any extenuating circumstances of the offence.
  •  Anything else the court considers proper, including the impact a conviction will have on your job, and the flow-on effect of that on anyone else who relies on your income.

Drug Possession Charges NSW | What is Drug Possession?

Drug possession Offences carry heavy criminal penalties in NSW, including criminal conviction and up to 2 years imprisonment, according to section 10 and section 21 Drug Misuse and Trafficking Act.

Drug possession definition: the definition of ‘possession’ means to knowingly have it in your custody or under your physical control to the exclusion of others not acting in concert. This can include ‘de facto possession’ where it’s knowingly located somewhere else where you intend to (and in fact do) exercise dominion and control over it.

What does ‘physical custody or control mean’? Having physical custody means to have it in your immediate physical custody where you exercise exclusive control over it. For example, where you have the drugs on you, including your hands or pocket.

Common Defences to Drug Possession? Not knowing it was there is an available defence to drug possession offences. But forgetting that it was there is not a defence.

Definition of ‘Prohibited Drug’

A prohibited drug includes Cannabis, MDMA or ecstasy, cocaine, Amphetamine, Methylamphetamine, and other drugs listed in schedule 1 of the Drug Misuse and Trafficking Act.

How do you Win a Drug Possession Case?

To beat a drug possession charge, there are four main ways to avoid a criminal record for drug possession charges in NSW:

  1. Dismissal because of a ‘not guilty’ verdict in court.
  2. Mental illness dismissal because you’ve been diverted away from the criminal justice system under a s32 (now called s14) application under a mental impairment.
  3. Section 10 dismissal or Conditional Release Order non-conviction sentence is imposed even after pleading guilty.
  4. You’ve paid a penalty notice fine for drug possession, if issued by police, which results in no criminal charge.

Click here for our article on how to get a section 10 non-conviction for drug possession in NSW.

Sentence for Drug Possession & Drug Possession Sentencing Guidelines

The Judicial Commission of New South Wales have recorded a total of just over 6,000 cases over period September 2018 to March 2019, each receiving a variety of drug sentencing and penalties from section 10 non-conviction to imprisonment.

For period between September 2018 to March 2019 the below table shows the various types of Australian drug penalties imposed by the Local Court across 6,151 people guilty of drug possession:

Average Jail time & sentences for drug possession charges in NSW
Penalty Type Percent Cases
S10(1)(a) dismissal non-conviction 5.4% 333
S10(1)(c) Discharge 0 0
Conditional Release Order non-conviction 26.6% 1634
S10A with conviction 4.2% 256
Fine with conviction 51.1% 3143
Community Correction Order 6.1% 373
Intensive Correction Order 0.7% 41
Imprisonment 1.3% 80

Fines for Drug Possession in NSW

Since 2019, police in NSW can issue an on-the-spot penalty notice fine of $400 to anyone caught possessing drugs, under schedule 4 of the Criminal Procedure Regulation 2017 (NSW).

An on-the-spot fine for drug possession can be issued by police if:

  • You possess a prohibited drug; and
  • The prohibited drug is MDMA (Ecstasy) in capsule form, weighing no more than 0.25g; or
  • The prohibited drug is MDMA (Ecstasy) and is in any other form, weighing under 0.75g; or
  • You possess any other prohibited drug, weighing no more than the ‘small quantity’ for that drug.

This applies whether or not it’s a first time drug possession charge offence in NSW.

Section 333 Criminal Procedure Act 1986 (NSW) gives police the discretion (option) to issue an on the spot fine in the form of a penalty notice to anyone who commits a ‘penalty notice offence’.If you pay the fine, you will not be required to attend court, and you will not receive a criminal record.

Police do not always have to issue an on-the-spot fine. They may decide to charge you in the form of a ‘Court Attendance Notice’, requiring you to face the charge in court. This then exposes you to heavy penalties, including a conviction and imprisonment, unless the court imposes a s10 non-conviction sentence.

Paying the fine puts an end to the matter, however, if you refuse to pay the fine and dispute it, you can court-elect the penalty notice. Court electing the fine will require you to attend Court where you can either plead guilty or not guilty. If guilty, you’re exposed to heavy penalties, including a conviction and imprisonment, unless the court imposes a s10non-conviction.

An on-the-spot fine cannot be issued by police if the drug is cannabis leaf. However, if someone is caught with cannabis, a police officer has the discretion to give you a caution under the cannabis cautioning scheme.

Schedule 4 Criminal Procedure Regulation 2017 (NSW) contains a list of all the penalty notice offences, including drug possession.

Drug Possession Defences

You will be found ‘not guilty’ to possessing prohibited drugs if:

  • The drugs were found as a result of an illegality by police, including illegal search or illegal arrest.
  • You didn’t know the drugs were there, nor were you aware of the likelihood of its existence there.
  • Where the drugs were discovered by police in a common area such as home or car where people other than you had access to it. This defence will succeed if there is a reasonable possibility that someone other than you had custody or control of the drugs to the exclusion of all others not acting in concert.
  • The prosecution cannot prove that the alleged substance is a prohibited drug under schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW).
  • You had possession of a minute trace or amount of a prohibited drug.
  • You had possession of the drug due to Duress or Necessity.

What Must Police Prove in Drug Possession Offences?

To prove this offence against you, police must prove each of the following elements beyond reasonable doubt:

  1. The substance found is a ‘prohibited drug’ or plant under the law; and
  2. You had its custody or control, with the intention to be able to exclude others not acting in concert; and
  3. You either knew or at least believed there was a real chance that the prohibited drug was there. The prosecution is not required to prove that you knew it was the particular drug found, only that you knew or were aware of the likelihood of the existence of a drug.

If you’re looking for personalised advice, we strongly recommend that you contact a lawyer for drug possession.

Cannabis Cautioning Scheme

A common argument our specialist drug lawyers express in court in support of achieving a section 10 and therefore no criminal record for their clients is the cannabis cautioning scheme in context of the new High Court Decision of the Queen v Adams.

Rather than being charged and given a court attendance notice for possession of drugs, your charge may have been something that police could have given you a caution for if you are caught with a minor amount of cannabis or other kind of drug.

The cannabis cautioning scheme can apply to you only in the following circumstances:

  • You were caught with no more than 15 grams of cannabis
  • It was for personal use only
  • You admit the offence
  • You were not involved with another criminal offence at the time you were caught with the drug
  • You have no previous criminal record of drug offences, or offences involving violence or sexual assault
  • You have not already been cautioned for this on more than two prior occasions. A section 10 for minor drug possession charge is included as a caution.

Drug Possession Victoria

In Victoria, the list of prohibited drugs is outlined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which include Cannabis, LSD, MDMA (ecstasy) Cocaine, and heroin. This applies across Victoria, including drug possession in Qld. Drug possession penalty attract up to 30 penalty units and/or 1-year imprisonment.

The maximum penalty for possession of cannabis, on the other hand, is 5 penalty units of the cannabis is no more than 50 grams. There is an additional penalty of up to 5 penalty unite for using cannabis.

1 penalty unit is valued at $181.74. This amount changes over time.

However, if caught with a small quantity of cannabis possession, and it’s your first drug possession offence, police usually provide a caution or warning instead of a criminal charge. This will be on the condition that you will agree to drug counselling and attend a drug treatment centre. If you fail to comply, the police may end up then charging you for drug possession.

How Long is the Jail Sentence for Drug Possession?

Jail sentence for drug possession is very rarely imposed by NSW Courts. However, the prescribed maximum jail sentence for drug possession is two years imprisonment, according to section 10 Drug Misuse and Trafficking Act 1985.

How to Get Drug Possession Charges Dropped?

You can get drug charges dropped either by successfully defending it in court with a ‘not guilty’ verdict, or by convincing the court to drop the drug possession charge earlier in the court proceedings through successful negotiations (via writing to the police called ‘legal representations’). This all depends on how weak the police evidence is, which requires close analysis of the police case by a drug defence lawyer to identify the weaknesses and then developing a solid strategy around how to best get the charges dropped early.

An example is if the police find a prohibited drug on you after illegally searching you, your car or home. This can result in the charge being withdrawn or dropped because the evidence is illegally obtained by police. Another example is if police are unable to prove beyond reasonable doubt that you had knowledge of the drug being where it was found, or if the drug was found in a common area in which police cannot negate the rational possibility that someone other than you (or anyone else acting in concert with you) had possession of it.

How Many Years in Jail for Drug Possession?

Drug possession carries up to two years in jail, under section 21 of the drug misuse and trafficking act 1985 in NSW. It also attracts up to a fine of $2,200 at the court’s discretion, however, jail time for drug possession is not normally imposed by courts. In NSW, police can now issue on-the-spot fines, instead of a drug possession charge. A fine means you are not required to attend court unless you court elect the fine in the usual way you can from receiving any penalty notice fine for a minor traffic matter.

How Much is Bail for Drug Possession?

People are not usually put on bail for drug possession charges because of its minor nature in compares
on to more serious drug offences such as drug supply and importation. A sum of money may be put up as security bail depending on the serious nature and quantity of the drug.

Bail is a term used in criminal law that permits an accused person charged with serious criminal offence(s) to be at liberty in the community for the duration of their court proceedings. It may be conditional or unconditional bail. If bail is refused or breached, it will usually result in you going to jail on remand until the case is determined.

What is the Punishment for Drug Possession?

The punishment for drug possession in NSW is a fine of $2,200 and/or up to two-years prison. While these are prescribed maximum penalties, they are seldom applied given the minor nature of these types of drug charges. section 10 sentences are often imposed for small amounts of drug possession, depending on the objective and subjective features of the case.

Do Drug Charges Ever Get Dropped?

Drug charges certainly can and do get dropped. This can occur either before the hearing date or during or at the conclusion of the hearing in court. Drug charges can get dropped before the court hearing date through early negotiations with police by drafting and sending police a letter to drop charges by outlining why it should be withdrawn (via letter called ‘legal representations’). The letter must be carefully worded and sent to the right person for it to be properly considered with a response. The crime manager in the police force will then review the letter and reply.

Alternatively, drug charges may get dropped during or at the end of the hearing in court if the Judge makes a finding of ‘not guilty’ in your favour. All this depends on whether you have a defence, how strong the defence is, and weaknesses of the police evidence. To determine this, it’s recommended to get an experienced drug lawyer to review your case properly to ensure you know where you stand as early as possible.

Can drug possession turn into deemed supply?

If you are found in possession of a prohibited drug weighing an amount that falls in at least the ‘traffickable quantity’ for that drug, the law assumes that you had it for the purposes of supplying under section 29 Drug Misuse and Trafficking Act 1985 (NSW) (Misuse of drugs act).

This means that you can be charged and convicted for ‘deemed supply’.

A common defence to a ‘deemed supply’ charge includes proving on the balance of probabilities that you had possession of the drug for personal use or for any other purpose other than to supply.

Schedule 8 Drugs | Other Schedule Drugs in Australia

Schedule 8 drugs are considered drugs of addiction and include, buprenorphine, butorphanol, cannabis, cocaine, codeine, dexamphetamine, ketamine, hydromorphone, fentanyl, methadone, methylamphetamine, methylphenidate (Ritalin), morphine, opium, oxycodone (Endone), sodium oxybate, tapentadol. These are generally not s8 prescription requirements NSW drugs.

Schedule 3 drugs in Australia (including schedule 2 drugs in Australia) are considered pharmacy medicine or pharmacist only medicine and includes some anaesthetics and analgesics which are available over the counter.

Schedule 4 drugs in NSW are considered poisons labelled ‘prescription only medicine’ and includes most other types of medicines requiring a prescription, such as local anaesthetics, antibiotics, strong analgesics (Panadeine Forte) that are not classified as schedule 8 poisons. Most benzodiazepines are considered schedule 4 drugs.

Schedule 5 drugs in Australia are poisonous substances of a dangerous kind which are commonly uses for domestic reasons.These substances contain cautions on their packaging. A licence to sell these type of drugs is not required, under the Poisons and Therapeutic Goods Act.

Schedule 5 drugs in Australia examples include methylated spirits, kerosene and bleaches that can be readily available to the public.

Schedule 1 drugs in Australia is empty and there is no reference to these type of drugs. However, schedule 2 drugs in Australia are dangerous to life type of drugs if misused or carelessly dealt with by a user. These are publicly available for therapeutic use without much restriction. A licence is required to sell a schedule 2 drug in Australia.

These schedule drugs are in reference to the Poisons and Therapeutics Goods Act 1966 (Drugs and Poisons Act) and the Poisons and Therapeutic Goods Regulation 2008.

Drug Supply Charges NSW | Drug Laws

A supply charge or Drug supply offence in NSW carry heavy sentences of imprisonment and a criminal record if convicted, under section 25(1) Drug Misuse and Trafficking Act 1985 NSW. A ‘prohibited drug’ includes the list of substances outlined in schedule 1 of the Drug Misuse and Trafficking Act, and includes MDMA/Ecstasy, Cocaine, Heroin, Methylamphetamine, Lysergic Acid, Amphetamine.

A prohibited plant includes cannabis plant, whether or not it is by enhanced indoor means or any other means.

What amounts to ‘supply’? Under our drug laws, the meaning of ‘supply’ in supply prohibited drug cases includes, giving for free, selling, distributing, agreeing to supply, offering to supply, keeping it in your possession for supply, sending, delivering, receiving the drug for supply, or allowing any of those acts.

Click here for a list of schedule 1 drugs in Australia referred to under the drugs misuse act.

Deemed Drug Supply NSW

When does a drug possession become a deemed supply charge? A deemed supply drugs offence is when you are presumed to have possession of a prohibited drug for the purpose of supplying it, only if you’re caught with possession of at least the ‘trafficable’ quantity of that drug.

What is the traffickable quantity? The ‘traffickable quantity’ reflects the weight category of the drug which may be different for different prohibited drugs. This is outlined in the below topic.

To defend a deemed drug supply charge, you will be required to prove on the balance of probabilities that you had possession of the drug for a reason other than to supply it i.e. personal use.

Facing a deemed supply charge? Get early advice from deemed drug supply lawyers to explore all options. The below is an outline on all drug supply and deemed supply penalties.

Australian Drug Penalties | Drug Supply Penalties in NSW 

Maximum Penalties for Drug Supply
Quantity Local Court District Court
 Small Quantity Drugs NSW 2 years imprisonment and/or $5,500 fine

 

15 years imprisonment or $220,000 fine
More than Small Quantity but less than Indictable Quantity Drugs NSW 2 years imprisonment and/or $11,000 fine 15 years imprisonment and/or $220,000 fine
Indictable Quantity Drugs NSW 2 years imprisonment and/or $11,000 fine 15 years imprisonment and/or $220,000 fine
Commercial Quantity Drugs NSW Cannot be dealt with in Local Court 20 years imprisonment and/or $385,000 fine
Large Commercial Quantity Drugs NSW Cannot be dealt with in Local Court Life imprisonment and/or $550,000 fine
Drug Quantity and Weight Categories for Drug Supply
Prohibited Plant/Drug Small Quantity Traffickable Quantity Indictable Quantity Commercial Quantity Large Commercial Quantity
Amphetamine 1 g 3.0 g 5 g 250.0 g 1 kg
Cannabis Leaf 30 g 300 g 1000 g 25.0 g 100 g
Cannabis Oil 2 g 5 g 10 g 500.0 g 2 kg
Cannabis Resin 5 g 30 g 90 g 2.5 Kg 10 Kg
Cannabis Plant Cultivated by Enhanced Indoor 5 50 50 200
Cocaine 1 g 3 g 5 g 250.0 g 1 Kg
Heroin 1 g 3 g 5 g 250.0 g 1 Kg
Lysergic acid 0.0008 g 0.003 g 0.005 g 0.5 g 2 g
Methylamphetamine 1 g 3 g 5 g 250 g 1 Kg
MDMA/Ecstasy 0.25 g 0.75 g 1.25 g 125 g 500g

The table above drug categories in Australia outlines the maximum Australian drug penalties and drug trafficking in Australia penalties according to the drug quantity and type. Whether a drug charge is heard and dealt with in the Local or the District Court, depends on the quantity, according to the Criminal Procedure Act 1986 (NSW).

The maximum penalties for drug supply offences range from 2 years to life in imprisonment and/or up to $220,000 fine. The maximum penalty is rarely given by a Judge as it’s reserved for the most serious drug offenders. The penalty imposed by a court depends on the quantity or weight of the drug.

Commercial supply of drugs carries up to 20 years imprisonment.

The previously known general rule where courts were required to send a drug supplier to Full time jail if he/she is found supplying to a ‘substantial degree’ has now been abolished by the new case of Parente v R [2017[ NSWCCA 284.

The NSW Supreme Court of the Court of Criminal Appeal in Parente’s case says that a drug supply offender who supplies or traffics drugs to a ‘substantial degree’ is not necessarily required to get a full-time jail term sentence.

This means, that a person guilty of supplying drugs to a ‘substantial degree’ can now avoid a sentence of full-time imprisonment, instead he/she can receive an alternative to full-time jail sentence, such as an intensive corrections order.

Penalties and Sentences Act | Drug Supply Sentencing Guidelines NSW

Every drug supply case is like a fingerprint, it’s different. The sentence imposed by a Judge depend on features of the case, including the level of seriousness of the drug supply offence. The less serious it is, the lighter the sentence will be according to the penalties and sentences act.

In determining an appropriate sentence to impose for a drug supply offence, the Judge or Magistrate will look at the below drug supply sentencing guidelines in assessing the level of seriousness to determine sentences for drug supply, according to the Crimes (Sentencing Procedure) Act 1999 (Sentencing Procedure Act),:

Drug Supply Sentencing Guidelines NSW
Quantity and purity of the drug You will likely receive a more lenient penalty if the quantity and purity of the drugs are low. Off-course, you will likely receive a harsher sentence if the quantity and purity are high. But the quantity of the drug is not the sole determinant factor on the ultimate sentence imposed. The court will be more interested in the role and level of participation of the offender. This was outlined in the case of R v Shi [2005] NSWCCA 135.

 

Role and level of participation The lower your role and extent of participation in the drug supply offence is, the more lenient the sentence will likely be. For example, the sentence will likely be more lenient to an offender who played the role of a courier or storeman, rather than a principal in the offence. The penalty will also be lower where the drug supply offence involved limited planning and premeditation.

 

‘Trafficking or supplying to a substantial degree’ Includes, high degree of planning months in advance, organising international flights, booking hotel rooms, contacting co-offenders, using coded telephone conversations and high level of sophistication in concealing the drugs.

 

Your vulnerability to drugs Where there is a vulnerability that contributed to you supplying drugs, the Judge or Magistrate will likely impose a more lenient sentence. Vulnerabilities can include your age, drug addiction, or your background. This was expressed in the case of R v Shi [2004] NSWCCA 135.

 

Your drug addiction Your ultimate sentence can be significantly reduced if you supplied drugs to feed your drug addiction ‘out of a need’ rather than greed (to make a profit). Drug supply offenders who supply drugs to make a profit will be treated with heavier sentences. This was outlined in the case of Nguyen v R [2007] NSWCCA 15.

 

Subjective or Personal Factors A lighter penalty is generally attracted to someone who genuinely expresses remorse, insight into the offence, provides a compelling explanation for committing the offence, mental condition or other vulnerability contributing to the offence, including drug habit, good prospects of rehabilitation, good character, and absence of previous criminal history.

Facing a drug supply charge? Early advice allows you to explore more options. Speak to a drug supply lawyer Sydney based today.

Section 10 for Drug Supply Offences 

A section 10 non-conviction or Conditional Release Order non-conviction is a type of sentence a court can impose for drug supply offence. This will mean you have no criminal record, even after pleading guilty.

No lawyer can guarantee a s10 result. But your chances at getting it can be maximised by being well prepared with strong persuasive submissions to present in court.

The following are some factors that can increase your chances at getting a section 10 sentence for drug supply offences:

  • You express remorse and insight in your offending conduct
  • You have expressed, through medical reports, excellent prospects of rehabilitation which can convince the Judge you are unlikely to re-offend
  • You are of otherwise good character. This can be expressed in character reference letters
  • There was no substantial harm or loss caused about from your conduct
  • You have limited, or no prior criminal record
  • Your young age and background

 Contact CDLA for a fixed drug supply lawyer cost enquiry.

Drug Supply Defences in NSW

 You will be ‘not guilty’ to supplying drugs if any of the following supply or deemed supply drugs defences apply:

  • You didn’t know that the drug was where it was found.
  • You held on to the drugs for the person you intended to return it back to.
  • When supplying it, you had no intention to pass the substance off as a prohibited drug.
  • Where you are charged for deemed supply, you had possession of the drug for personal use, or a use other than to supply.
  • Where police discovered the drug following an illegal search or arrest.
  • Where the drug was found in a common area, and police cannot exclude the reasonable possibility that it was someone else’s who has access to that area.
  • You acted under Duress or Necessity.
  • For charges of ‘taking part in supply’, you will be not guilty if:
    • You didn’t do anything to cause steps to be taken in the supply process.
    • You didn’t make any arrangements or give finance for the supply.
    • You didn’t permit the premises to be used for the supply process.
    • You did not contemplate on supplying, nor did any supply take place.

  What Police Must Prove in Drug Supply Offences

 To prove the offence of drug supply, police must prove each of the following elements beyond reasonable doubt:

  1. You supplied a prohibited drug; or
  2. You took part in supplying a prohibited drug.

Ongoing Supply Drugs NSW

Ongoing supply of drugs is another type of drug supply offence in NSW, where a person supplies a prohibited drug on at least 3 separate occasions over a 30-day period for the purposes of gaining a financial or material reward, according to Section 25A of the Drug Misuse and Trafficking Act 1985 (NSW).

Ongoing Supply Penalties

Supplying prohibited drugs on an ‘ongoing basis’ in NSW has a maximum penalty of 20-years imprisonment and/or $385,000 fine.

The maximum penalties are not usually imposed by a Judge unless the case is categorised as the most serious of its kind in Australia.

Ongoing Supply Defences

  • You will be ‘not guilty’ to a charge of supplying drugs on an ongoing basis if:
  • Your actions did not amount to ‘supply’ under the law
  • You did not intend to pass the substance off as a prohibited drug
  • There were less than 3 supplies over a consecutive 30-day time period
  • The 3 supplies alleged by the police occurred over a period of more than 30 consecutive days
  • You did not gain financial or material reward for any one or more of the 3 occasions of supply
  • You supplied the drug for the purpose of a study, scientific research, analysis or instruction under the authority granted by the Director-General of the Department of Health
  • You possessed a licence or authorisation to supply the drug under the Poisons and Therapeutic Goods Act 1966
  • Duress or Necessity

What Police Must Prove in Ongoing Drug Supply Offences

To prove the offence of drug supply on an ongoing basis in NSW, police must prove each of the following elements beyond reasonable doubt:

  1. You supplied a prohibited drug, and
  2. You did this on 3 or more separate occasions within a 30-day period, and
  3. You did this for the purposes of obtaining a financial or material reward.

Supplying Drugs to Minors

Supplying drugs to a minor, or knowingly take part in supplying to a minor amounts to a criminal offence with heavy criminal penalties outlined in the below table relating to section 33AA and 33AC of the Drug Misuse and Trafficking Act 1985 (NSW).

Penalties for Supplying Drugs to Minors
Section Offence Maximum Penalty
Section 25(1A) Supplying drugs to person under 16 years of age 18-years imprisonment and/or 2400 penalty unit
Section 25(2A) Supplying commercial quantity of drugs to person under 16 years of age 25-years jail and/or 4,200 penalty units
Section 26 Conspiring to commit any of the above offences 18-years imprisonment and/or 2400 penalty unit
Section 27 Aiding, abetting, counselling, procuring, soliciting or inciting any of the above offences 18-years imprisonment and/or 2400 penalty unit
Section 28 Conspiring to commit, or aiding, abetting, procuring, counselling, soliciting or inciting any above offence outside NSW 18-years imprisonment and/or 2400 penalty unit
Section 25(2C) Procuring a person under 16 years of age to supply 18-years imprisonment and/or 2400 penalty unit
Section 25(2D) Procuring an under 16-year old person to supply commercial quantity of drugs 24-years imprisonment (if commercial Q) Life imprisonment (if large commercial Q)

What is the Drug Misuse and Trafficking Act 1985?

The Drug Misuse and Trafficking Act 1985 (NSW) is the New South Wales statutory law on illegal drugs with prescribed maximum penalties and available defences across all types of prohibited drugs and plants in NSW. It contains a list of these prohibited drugs and plants in schedule 1 to this statutory legislation.

What is a Drug Supply Charge?

A drug supply charge is a criminal allegation under the Drug Misuse and Trafficking Act in NSW. A drug supply charge starts with being served with a ‘Court Attendance Notice’ (CAN) which contains the main information as to the type of drug offence, the drug type, the section of the legislation you are charged with, the court date and location of court, including the time you’re required to attend, in addition to a brief description often referred to as the ‘particulars’ of the allegation (located towards the bottom of the CAN document.

A drug defence lawyer will be able to accurately advise you after reading the CAN. A drug supply charge will then require you to answer to the allegations by either entering a plea of ‘guilty’ or ‘not guilty’ in court.

Is Supply of Drugs an Indictable Offence?

Supply of drugs offences are ‘indictable offences’, which means that they may be dealt with either in the Local or District court. Certain drug supply offences that can only be dealt with in the District Court are called ‘strictly indictable’ offences and include commercial and large commercial quantity drug supply charges.

What is Commercial Drug Supply?

Commercial drug supply is a ‘strictly indictable’ offence, which means it’s the type of drug charge that must be dealt with in the District Court (instead of Local Court). This reflects the fact that commercial drug supply is considered amongst the most serious types of drug supply offences. Whether the drug falls within a commercial quantity category, small, traffickable, indictable or large commercial quantity category, will depend on the type of drug and it’s weight/quantity.

Is Cocaine Legal in Australia?

Cocaine is listed as a ‘prohibited drug’ in NSW, under schedule 1 of the Drug Misuse and Trafficking Act. This means that it is illegal to possess or sell it. Across all Australia, cocaine is considered a ‘border-controlled drug’, under the Commonwealth law of schedule 2 Criminal Code Regulation 2019. Possessing it, importing it or exporting it is a crime.

Can Two People be Charged with Deemed Supply?

Two people can be charged with deemed supply if the prosecution can establish shared possession of at least a traffickable quantity of the prohibited drug in question. The traffickable quantity will vary from drug to drug.

How Much Speed Drug is Supply?

3 grams of amphetamine is considered a traffickable quantity which then falls within the category of deemed supply, according to section 29 Drug Misuse and Trafficking Act 1985 (NSW).

How Do Police Prove Drugs Intent to Sell or Supply?

Police can prove an intention to sell or supply prohibited drugs by adducing ‘circumstantial evidence’ in order to show a reasonable inference that the only purpose you had drugs on you were to supply or sell. Police will therefore fail to prove this if they are unable to negate or exclude any rational possibility that you had it on you for a reason other than to supply.

For example, evidence of scales, cash, plastic bags can be used by police to prove an intent to sell or supply. Police have a high burden of proof to prove this beyond reasonable doubt.

How Long Do You Go to Jail for Drug Supply?

While the maximum jail sentences range from 2 years to life in jail, the maximum sentences are not imposed by our courts. This is because the maximum is reserved only for the most serious offenders with an extensive criminal history.

Courts rarely impose a jail sentence for small drug possession offences, while there is generally a higher chances for jail for drug supply offences as drug supply is considered more serious.

What is the Penalty for Supplying Drugs?

The maximum penalty for supplying prohibited drugs in NSW ranges depending on the quantity of the drug, from 2-years jail and/or $5,500 fine to life imprisonment and/or $550,000 fine, under the drug misuse and trafficking Act 1985 (NSW).

What Sort of Lawyer is Needed for Drug Supply?

Lawyers who specialise in drug laws are often referred to as drug lawyers in Sydney. A drug lawyer will have enough experience and skill set to be able to readily advise, guide and represent you in court for any drug charge. A good drug lawyer will explore all your options, including the option of negotiating with the prosecution to get charges either withdrawn early or downgraded, while tactfully working out the best defence available to your drug supply case.

Your Options in Court

Pleading Not Guilty

After pleading ‘not guilty’ in court to a drug charge, your case will eventually be adjourned to a defended hearing in the Local Court or Trial in the District Court. 

After all evidence is heard in the hearing or trial, the court will decide on a verdict of either ‘not guilty’ or ‘guilty’ to the charge. 

If you’re found ‘not guilty’, the charge will be dismissed.

If you’re found ‘guilty’, the Magistrate or Judge will sentence you in court.

You can only be found ‘guilty’ of your drug charge in court if the prosecution can prove each and every element of the drug charge you face, beyond reasonable doubt.

Pleading Guilty

If after receiving advice, you decide to ‘plead guilty’ to a drug charge, below is a good guide to start from in your journey to preparing for a sentence.

 

25% discount on punishment

Your sentence will be reduced by 25% if a plea of guilty to your drug charge is entered at the earliest possible opportunity in the court proceedings.

This gives a great head start towards getting the best possible sentence. The trick is to make sure you make the right decision early enough.

That discount gets smaller the later a plea is entered in court.

 

Good character reference Letter

Gathering strong well written character reference letters for court in drug cases can persuade a Judge or Magistrate to impose a lighter sentence.

This can increase your chances to remain conviction-free (s10), and in more serious drug cases, to avoid or reduce prison.

Your referees should be carefully chosen, who may outline expressions of your remorse, insight, and the impact a drug conviction will have on your job and family dependants.

Referees may include family, partner, friend, employer, colleague, and charity or religious organisation.

 

Apology Letter

A well drafted apology letter for your drug sentence can also convince the Judge to further reduce your sentence.

The apology letter should be drafted by the person being sentenced, signed and dated for the Judge to read in court during sentence.

The letter can outline expressions of remorse, insight into drug offences, personal circumstances and more.

 

Negotiate to drop charges

If there are enough holes in the police evidence or you have a strong defence, you may be able to convince the police to withdraw the drug charge early through effective negotiations. This option should always be properly explored by your defence team.

Your lawyer may do this by drafting and sending a document referred to as ‘legal representations’ to the prosecution, outlining the holes in their evidence. This should be done before entering a plea of guilty.

 

Negotiate to change the police facts

You may also be able to negotiate and change the ‘police fact sheet’ to something more favourable.

The police facts sheet is a document summarising the main details of your drug offence for the court to read before a sentence is imposed. Changing it can make a very big difference.

Changing the police facts can put you in a much better light when it’s read by the Judge or Magistrate on your sentence, resulting in a lighter sentence.

 

Psychologist Reports

It’s recommended to get an expert psychologist or psychiatrist report to produce in court on your sentence day if you believe you may be suffering a mental impairment.

This can significantly improve your sentence result if done properly from a well-respected and experienced expert psychologist or psychiatrist.

A compelling psychologist report may comment on your diagnosis of mental illness, whether there is a connection between your condition and drug offence, any remorse and insight you have, a treatment plan and progress.

 

Expert Reports

Expert reports include reports from a psychologist or psychiatrist and are one of the best ways to significantly increase your chances of a better outcome in court for the following reasons:

  • If the psychologist report establishes that you were suffering a mental illness at the time of your wrongdoing, such as depression, anxiety disorder, bipolar etc, then you will be given a lighter sentence than someone who was not suffering a mental illness at the time of the offence.
  • It is one of the best ways to express your guilt, remorse and embarrassment to the Judge, allowing for the Judge to give you more leniency.
  • It is a great way to provide, not an excuse, but an explanation for committing the offence. An explanation can allow the Judge to reduce the severity of the punishment.
  • It can also allow you to tell your side of the story.

It’s important to carefully select the right suited experienced expert for your report for maximum effectiveness in its use in your case. An experienced criminal lawyer will have a hand selected list of experts.

When getting an expert report, it’s extremely important to write to the expert with a list of legally correct questions catered to your case so that the expert can be prompted to answer them to put into the final report.

While this article has been written by our very own experienced drug lawyers Sydney based, we strongly recommended you get personalised tailored advice because your case may have some special or unique features that require close analysis by someone experienced. Our team is available 24/7.

Frequently Asked Questions

How to avoid a drug conviction after pleading guilty?

In addition to the factors outlined earlier on this page, you can increase your chances at avoiding a criminal record even after pleading guilty by addressing the following in the form of evidence for the Judge to take into account on sentence:

  • Your good character
  • Your age and health
  • Whether you were or are suffering a mental illness, and if so, whether the mental illness contributed to you committing the offence.
  • Having no or limited previous convictions or offences on your record
  • Trivial nature of the offence
  • Any extenuating circumstances of the offence
  • Anything else the court considers proper to take into account on your sentence, including the impact that a conviction will have on your job, and the flow-on effect of that on anyone else who relies on your income

What if I was holding drugs for a friend?

Holding drugs for a friend or anyone is a crime in NSW. It amounts to drug possession if you had knowledge it was on you.

How can the prosecution prove that I had knowledge of the drug?

To prove a drug possession offence, the prosecution must prove that you knew of the existence of the drugs from where it was found by police or you were aware of the likelihood of its existence there. This can be inferred by the court from looking into the circumstances from where the drugs were found.

For example, it may be inferred that you had knowledge of the drugs if the drugs were found in a secret compartment of your car which only you had access to because no one else used the car but you.

Having physical custody of a prohibited drug on you can allow a court to infer that you had knowledge of it unless you can prove otherwise.

However, a court cannot necessarily infer that you had possession of drugs if the drugs were found in a house, car or location that others also have access to or frequent, unless the court can exclude the reasonable possibility that people other than you had or intended to exercise control over it to the exclusion of others not acting in concert.

Drugs found in shared house or Private Property?

If prohibited drugs are found in a shared area of a home or other building, you cannot be guilty of drug possession if there is a reasonable possibility that someone other than you who also accesses the same area had placed the drug there or has custody of it with the intention to exclude others. You can only be guilty if the prosecution can eliminate that reasonable possibility beyond reasonable doubt, which is usually very difficult to do.

If prohibited drugs are found in a shared area of a house or building where you and other people frequently attend or have access to, you can be
charged with ‘joint possession of drugs’.

However, you cannot be found guilty of ‘joint possession of drugs’ if the prosecution fails to prove that you and those others who also had access
or frequented that area intended to share the control of the drugs.

Drugs found in a car

Drugs found in your car

If prohibited drugs are discovered by police in the boot of your car, in circumstances the boot is locked and you don’t have the keys to the car, you cannot be found guilty of possessing drugs. This is because you will not be considered to have ‘exclusive control’ of the drugs.

If prohibited drugs are found in a car you use, being the same car others also have access to and use on occasions too, the police can charge you and those others with ‘joint possession of drugs’.

However, you cannot be found guilty of ‘joint possession of drugs’ if the prosecution is unable to prove that you, and those others, intended to share the control of the drugs.

Drugs found in someone else’s car where you are a passenger in

If prohibited drugs are found in a car or other moving vehicle not owned by you where you are a passenger, you cannot be guilty of drug possession merely because of that fact.

What is a ‘parole’ and ‘non-parole’ period?

When a Judge imposes a sentence of full-time imprisonment of more than 6 months, the Judge is required under the law to give you a ‘non-parole’, and ‘parole’ period.

The ‘non-parole period’ of a sentence of imprisonment is the period of time you must spend behind bars, in jail.

The ‘parole period’ is the period you may be released from jail on parole, on conditions while still finishing the rest of your sentence in the community.

The period of non-parole a Judge imposes will depend on each case. The Judge is guided by the “standard non-parole period” which applies to certain offences, which is used by a Judge as a guide in determining an appropriate sentence for an offender.

What is the ‘standard’ non-parole period?

Some charges and weights of drugs carry a “standard non-parole period”. This means that a standard non-parole period drug offence carries a prescribed standard period an offender is required to spend in full-time jail before being eligible for release on parole.

Do not panic, because the standard non-parole period is not mandatory for a Judge to apply. The Judge usually uses this as a guide only, or may not even use it at all, depending on the case.

The standard non-parole period for a drug supply offence gets engaged for a Judge to use only as a guide (not mandatory) if the offence is considered to fall in the middle range of objective seriousness for drug supply offences. To determine if the offence falls in the middle range of objective seriousness, the court will consider the factors outlined earlier on this page.

Does the standard non-parole period apply to your drug supply offence?

If your drug weight is more than the commercial quantity but less than the large commercial quantity, then the standard non-parole is 10 years imprisonment.

If your drug weight is more than the large commercial quantity, then the standard non-parole period is 15 years imprisonment.

The standard non-parole period applies to you if the weight of your drug offence is either the commercial quantity, or more than the commercial quantity.

The standard non-parole period offences are outlined in the table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.

For Drug Supply on Ongoing Basis: What if I supplied a different prohibited drug on some or each occasion?

According to section 25A(2) of the Drug Misuse and Trafficking Act 1985 (NSW), it does not matter if the type of prohibited drug differed on each occasion.

The police are only required to prove that the supply of any prohibited drug occurred on 3 or more occasions within a 30-day period.

Double Jeopardy: Can I be charged for each of the separate offences of supply drugs on an ‘ongoing basis’, and supply drugs?

A person who is convicted of an offence of supply on ongoing basis cannot additionally be charged with the separate supply of those drugs on the same or substantially same facts. This is called double jeopardy and is in place to prevent a person from being punished twice for the same charges on the same set of facts.

Type of Sentence Penalties for Drug Offences

The judge has a variety of different kinds of punishments to give to you. Which one you get depends on the above features already outlined in this article, and more. Get legal advice to find out the realistic outcome for your case.

The Judge can give any one of the following kinds of punishments for a drug offence:

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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