What is the Law and Penalties for Drug Supply Charges in NSW?

Pill testing sites can be remotely set up at music festivals for the purposes of testing drugs to disclose any life-threatening chemicals in an environment where there will be no criminal charges. This can be conducted in an effort to minimise or eliminate drug-related harm to young people at music festivals.

Evidence has demonstrated that this has many benefits outlined in our recent blog on pill testing and music festivals.

Pill testing has only ever been introduced with success in the Australian Capital Territory at the ‘Groovin The Moo’ festival this year. More than eighty percent of participants in the 1st ever pill testing trial erroneously believed their pill was MDMA.

Around the world, it has had, and continued to have success in England and Europe which have been doing this for years.

There have been calls for the Government to trial it in NSW as a last bid to save young peoples lives at music festivals.

It’s reported that a twenty-three-year-old male and twenty-one-year-old female died after drug overdoses in last month’s Defqon1 music festival in Sydney.

In the wake of the 2 deaths at the recent Defqon1 music festival in Sydney this year, Premier Gladys Berejiklian has maintained her opposition to pill testing in NSW.

However, the Premier now has other plans, namely, to introduce a new offence to send a stronger and clearer message to deter drugs suppliers and users. “I value human life and I don’t want to see human life taken away unnecessarily,” the Premier said.

The new offence which is yet to be outlined and clarified by the Attorney-General is reported to attract a penalty of up to 25 years imprisonment to anyone guilty of supplying prohibited drugs that causes death to someone else.

Police Commissioner, Mick Fuller remarked that the new offence will be similar to manslaughter charges. He said, “Certainly the stronger the charge, the better- we imagine it would be around a manslaughter, grievous bodily harm-type charge… I mean you drive a car intoxicated now and you kill someone, there’s a significant crime attached to that… supplying a drug to someone knowing there’s a chance it could kill them surely has to have more responsibility than just a supply charge.”

The Police Commissioner also suggested that there be a $500 on-the-spot fine for a drug possession offence. It is expected there will be a trial for this on-the-spot fine at music festivals.

The expert panel which was assembled following the 2 deaths from the Defqon1 music festival have said, that the purpose of the new offence is to target drug dealers rather than to someone passing a deadly pill to friends.

The heaviest penalties are expected to be reserved for drug dealers as apposed to drug supply between friends.

It’s reported that the Premier announced her acceptance as to all of the recommendations in the month-long investigation by the expert panel which was sparked by the two deaths from the Defqon1 festival. The recommendation included the on-the-spot fines, improving the regulation of music festivals by way of introducing a new licensing regime in an attempt to improve on safety, drug education and frontline health workers at music festivals.

The Law and Penalties for Drug Supply Charges NSW

The penalties for a drug supply offence currently depend on the weight of the prohibited drug.

The following is a table outlining the maximum penalties for various weight categories:

Drug Weight and Categories

A person can only be guilty of supplying prohibited drugs if the police can prove that the person supplied a prohibited drug (or took part in it) pursuant to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

“supplying” includes giving a drug to a friend either for free or in return for money.

“Supply” is defined under section 3 of the Drug Misuse and Trafficking Act 1985 (NSW) as agreeing to supply, distributing, selling, offering to supply, holding it for the purpose to supply, sending or delivering it, receiving the drug for purposes of supplying it later. Supply even includes allowing any of those things to occur.

There are other ways that the police can charge you for supplying prohibited drugs, including a circumstance where you were simply in possession of the drug if the drug weighed at least the ‘traffickable quantity’.

Where someone is found with possession of a traffickable quantity of a prohibited drug in NSW, he/she will be deemed under the law to have had it in possession for the purposes of supplying it (referred to as ‘deemed supply’). The traffickable quantity differs based on the type of drug which is outlined in the above diagram.

The allegation of being caught ‘red handed’ supplying drugs is referred to as ‘actual supply’ whereas the allegation of being found with at least a traffickable quantity of drugs is referred to as ‘deemed supply’ under the law.

A person can be guilty of supplying prohibited drugs to another person if it was intended to have been passed off as a prohibited drug to the other person, even if the drug was not actually a prohibited drug.

Defences to Drug Supply Charges in NSW

Your drug supply charge (whether it is deemed supply or actual supply) can be dismissed if any one of the following defences apply:

1. In the case of a charge of deemed supply: you will be not guilty if you were holding the traffickable quantity of the drug for the purposes other than supplying it. i.e. where you were in possession of it to self-use.
2. In the case of actual supply: you will be not guilty if you didn’t intend to pass the drug off as a prohibited drug to the other person (where the substance was not actually a prohibited drug).
3. You can be found not guilty if the prohibited drug was discovered by police as a result of an illegality, such as an illegal search or illegal arrest.
4. In the case of a charge of ‘taking part’ in the supply of drugs, you will be not guilty if any of the following apply to you:
   • Where you didn’t contemplate in supply drugs and where no supply took place.
   • You did not provide for the premises for where the alleged process of the supplying took place.
   • You didn’t arrange or provide money for the supply.
   • There were not steps taken by you to cause the process of the alleged supply.

When considering an appropriate penalty for an offender of drug supply, the Judge or Magistrate will consider many relevant factors.

These relevant factors include the weight of the drug, purity of the drug, role and level of the offender’s participation in the supply, and extent of planning, organising and sophistication involved.

The case of Nguyen v R [2007] NSWCCA 15 says that drug dealers who supply for pure greed or profit are considered the worst kind of drug suppliers attracting higher penalties.

Any questions arising from this blog? Our team of lawyers are available 24/7 to answer your questions, who also appear in all courts.

We also have experienced criminal lawyers in Liverpool, Blacktown, Bankstown and Parramatta.

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