Drug Offences
Drug Offences in NSW
Drug offences in NSW are dealt with under the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”). Whilst the Act deals with a range of offences for different types and quantities of illicit substances, the two (2) main offences that people most commonly face are that of “possess prohibited drug” or “supply prohibited drug”.
The definition of a “prohibited drug” are any items of illicit substances referred to in Schedule 1 of the Act. As the act sets out these substances in great detail, a full list of whether a substance is classified as a “prohibited drug” can be found here.
Possess Prohibited Drug
Possess prohibited drug is dealt with under section 10 of the Act. Section 10(1) of the Act states:
- Possess prohibited drug is dealt with under section 10 of the Act. Section 10(1) of the Act states:
Subsection 2 of the Act provides for the following exceptions/defences:
- A person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act 1966;
- A person acting under a poppy license under the Poppy Industry Act 2016;
- A person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis or study;
- A person acting in accordance with a direction given by the Commissioner of Police under section 39G;
- A person for or to whom the prohibited drug has been lawfully prescribed or supplied; or
- A person who:
- Has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and
- Has the prohibited drug in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply.
In order for a Court to determine whether you are guilty of the offence, the Police must prove the following elements:
- You had a prohibited drug in your possession; and
- You believed it was a drug; or
- You knew it was in your possession, or you knew of its likely existence and nature.
The Courts have taken a broach approach to the definition of “possess”. Generally, the most common form of possessing a prohibited drug is where the illicit substance is physically on your person. However, the Courts have also found that you “possess” a prohibited drug if you are in ‘control’ of the drug. As such, even if you do not physically have the prohibited drug on you, and the drug is left inside your vehicle or you are holding the prohibited drug for one of your friends, you may still be charged with the offence.
Supply Prohibited Drug
Supply Prohibited Drug is dealt with under section 25 of the Act. Section 25(1) states:
- A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.
Subsection 4 of the Act provides for the following exceptions/defences:
- A person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966; or
- A person acting in accordance with an authority granted by the Secretary of the Departments of Health where the Secretary is satisfied that the supple of the prohibited drug is for the purpose of scientific research, instruction, analysis or study; or
- A person acting in accordance with a direction given by the Commissioner of Police under section 39G.
Under the Act, the quantity of the drug is a significant factor when the Court determines the type of penalty to impose. Schedule 1 of the Act sets out the different quantities of each drug that determines the range of penalties for the Court to consider.
In order for a Court to determine whether you are guilty of the offence, the Police must prove the following elements:
- That you supplied; or
- That you knowingly took part in the supply of;
- A prohibited drug.
Like possession, the definition of a “supply” has also been given a wide interpretation by the Courts. A “supply” can include, but is not limited to, the following:
- Selling and/or distributing;
- Agreeing to supple and/or distribute;
- Sending prohibited drugs;
- Delivering prohibited drugs;
- Directing the delivery of the prohibited drug; or
- Any one or more of the above acts.
Although you may not have physically provided the prohibited drug to another person, you may still be charged with the offence at any point in the supply process for engaging in any act that procures the supply of the prohibited drug. The Courts have also extended this to any agreements to supply the prohibited drug in the future.
A supply is also recognised even when there is no monetary consideration. As such, you may also be charged with a “supply” in more social settings for passing around prohibited drugs to your friends or family.
“Deemed Supply”
Furthermore, if you are found to be in possession of a large quantity of the prohibited drug, then you may also be charged with “deemed supply” under section 29 of the Act. This means that you are in possession of the drug for the purpose of supplying the drug to other people. This section is engaged if you are in possession of a “trafficable quantity” of the drug. This can also be found in the link above.
If you are charged under section 29 of the Act, then the onus is on you to prove the following:
- You did not have the prohibited drug for the purposes of supply; or
- Except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin of 6-mooacetylmorphine or any other acetylated derivatives of morphine, you obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.
Penalties
The offence of possess prohibited drug carries a maximum penalty of 20 penalty units and/or 2 years imprisonment. The Courts take drug matters very seriously, particularly for repeat offenders. However, if you are a first-time offender, you are able to approach the Court and ask for leniency.
The offence of supply carries a number of penalties depending on the quantity of the drug supplied:
- Small quantity – 50 penalty units and/or 2 years imprisonment;
- Trafficable quantity – 100 penalty units and/or 2 years imprisonment;
- Indictable quantity – if your matter is heard in the Local Court, then the maximum penalty is 100 penalty units and/or 2 years imprisonment. If your matter is heard in the District Court, then the maximum penalty is 200 penalty units and/or 10-15 years imprisonment.
- Commercial Quantity – 3,500 penalty units and/or 20 years imprisonment.
- Large Commercial Quantity – 5,500 penalty units and/or 20 years – life imprisonment.
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