Supplying a Self-administered Prohibited Drug Causing Death Penalties

A 23-year-old Victorian man has been charged with supplying drugs causing death, following the death of a 21-year-old festival goer who attended the ‘Knockout Outdoor’ hardstyle festival.

The event drew in 53,000 festivalgoers and featured over 40 acts. It resulted in 27 people being charged with drug possession while four people – two men and two women – were charged with drug supply.

It also unfortunately resulted in 9 people being taken to hospital and 2 deaths, which included the 21-year-old, and a 26-year-old, Jason Lee.

The 21-year-old died shortly after leaving the festival at Sydney Olympic Park on Saturday 30 September, when he collapsed at a hotel on George St in Sydney’s CBD.

He was rushed to St Vincent’s Hospital, but he could not be revived and tragically passed away in the early hours of Sunday morning.

Detectives arrested 23-year-old Trong Ha Nguyen as he attempted to board a plane at the airport, which was travelling back to Melbourne on Monday, 2 October.

It is reported that Nguyen was in possession of $13,535 in cash when police searched him after his arrest.

From the airport, he was transported to Mascot Police Station, where he was subsequently charged with supplying a self-administered prohibited drug causing death and dealing with property proceeds of crime of less than $100,000.

However, the first charge of supplying a self-administered prohibited drug causing death was later dropped after the police admitted that they had not obtained prior approval from the Director of Public Prosecutions (‘DPP’), which is required for this charge.

The matter was re-heard on Tuesday, 3 October where two additional charges of supplying a prohibited drug were laid.

The police have advised that the original charge of supplying a self-administered prohibited drug causing death would now be referred to the DPP for authorisation for it to be laid.

Nguyen was refused bail, with the matter adjourned to 17 October for mention at Burwood Local Court.

This matter is believed to be a potential ‘first’ in the state, as the offence of ‘supplying a self-administered prohibited drug causing death’ has never been prosecuted before.

It was introduced in 2018 by the Berejiklian state government, following the deaths of 23-year-old Joshua Tam and 21-year-old Diana Nguyen at the ‘Defqon.1’ Festival, on 15 September 2018.

At the time, the Law Society characterised the proposed offence as ‘unnecessary and highly problematic’. This was due to concerns that it could create liability for someone’s death where the accused only had the intention to supply a prohibited drug.

There were also concerns that it would impact low level street dealers and have little deterrent effect.

The offence is outlined in section 25C of the Crimes Act 1900 (NSW). The prosecution is required to prove, beyond reasonable doubt, that:

  1. You supplied a prohibited drug to another person,
  2. You did so for financial or material gain,
  3. The drug was self-administered by another person,
  4. The self-administration of the drug caused or substantially caused the death of that other person, and
  5. You knew, or ought to reasonably have known, that supplying the prohibited drug would expose another person to a significant risk of death due to self-administration of the drug.

Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions. The maximum penalty for this offence is 20 years imprisonment in New South Wales.

This offence does not apply to those authorised to supply a drug under the Poisons and Therapeutic Goods Act 1966 (NSW).

Prohibited drugs are outlined in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) and include heroin, cocaine, MDMA or ecstasy (referred to as 3,4-Methylenedioxymethamphetamine), ketamine, and amphetamine, among many others.

The ‘mens rea’ or mental element of the offence (which is point 5 in the list above) was particularly criticised by the Law Society.

This is due to how it is evident that everyone knows (or ought to know) that prohibited drugs may be ‘cut’ with lethal substances, and that some users may mix it with other substances or take it incorrectly and overdose.

Former President of the Law Society of NSW, Doug Humphreys OAM commented: “we do not consider that a person should be liable (as a point of knowledge) if the user mixes, uses an unexpected mode of administration or takes a dose that is foolishly high.”

Proceedings only being able to be instituted with approval from the DPP has been labelled by the government as a ‘safeguard’.

It is proposed that this ensures all relevant factors can be considered, including whether it can be said that there are reasonable prospects of a conviction by a reasonable jury properly instructed, as well as other discretionary factors that may dictate that a matter should or should not proceed, in accordance with the Prosecution Guidelines.

About Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

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