SUPPLY OF A PROHIBITED DRUG
What is Drug Supply?
Supplying a Prohibited Drug is a crime in New South Wales under section 25 of the Drug Misuse and Trafficking Act 1985 (the Act) which states:
“A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.”
Supply of Prohibited Drugs is one of the most serious drug offences in NSW.
Schedule 1 of the Act contains an exhaustive list of all Prohibited Drugs in NSW. Some drugs are always prohibited (e.g. Cocaine), but some are prohibited unless properly prescribed to you (e.g. Methadone). A Prohibited Drug cut or mixed with a legal substance is still a Prohibited Drug – the purity of the drug is not relevant.
Because of the wide definition of “Supply” in section 3 of the Act, the supply of Prohibited Drugs does not just mean selling or distributing drugs to another person. Supply can also include:
- agreeing to supply,
- offering to supply,
- keeping or having in possession for supply,
- sending, forwarding, delivering or receiving for supply,
- authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
Importantly, mere possession of a Prohibited Drug can also lead to a charge of Supply of Prohibited Drugs. This is because section 29 of the Act says that if you are in possession of a “trafficable quantity” of a Prohibited Drug, it is deemed (assumed) you have too much for personal use, and must be intending to supply it to other people. This is called a Deeming Provision. If the Deeming Provision is relied on by Police, the onus of proof shifts, which means you have to prove on the balance of probabilities that you possessed the Prohibited Drug for another reason other than to supply it (e.g. your personal use).
If Police allege you have Supplied a Prohibited Drug (other than cannabis) three times, they can also charge you with Ongoing Supply of a Prohibited Drug, under section 25A of the Act.
Examples of Drug Supply:
- Selling MDMA pills to strangers at a music festival.
- Having a trafficable quantity of Cocaine in your pocket (above 3 grams).
What the Prosecution need to prove:
For you to be found guilty of Supply of a Prohibited Drug, the Police and Prosecutor must prove beyond a reasonable doubt that:
- The drug is a Prohibited Drug; AND
- You knew, or believed, the substance was a Prohibited Drug (not necessarily the Prohibited Drug you were charged with, but any Prohibited Drug). Your knowledge may be inferred from the circumstances; AND
- You supplied the Prohibited Drug:
– You intentionally gave or provided the Prohibited Drug to somebody, whether by way of sale or otherwise; OR
– You possessed a trafficable quantity of the Prohibited Drug.
Prohibited Drugs and their quantities:
Your exact charge will depend on the type and quantity of the Prohibited Drug. You can be charged with supply of a Small Quantity, Indictable Quantity, Commercial Quantity or Large Commercial Quantity of a Prohibited Drug. The relevant quantity changes depending on the drug. Check out: Quantities of Prohibited Drugs.
Which Court will your Drug Supply case be heard in?
The Court your case will be finalised in depends on the quantity of the Prohibited Drug you have been charged with supplying.
|Small Quantity, or less||More than Small Quantity but less than Indictable Quantity||More than Indictable Quantity but less than Commercial Quantity||Commercial Quantity or more, but less than Large Commercial Quantity||Large Commercial Quantity|
|Usually in the Local Court, but may be heard in the District Court||Usually in the Local Court, but may be heard in the District Court||Local Court or District Court||District Court.||District Court.|
Defences to the charge of Supply of a Prohibited Drug:
- The Prosecution cannot prove the elements of the offence of Supply of a Prohibited Drug.
- You were in “temporary possession” of the Prohibited Drug and intended to return it to the owner. This is known as the Carey Defence, from the case of R v Carey (1990) 20 NSWLR 292.
- You are charged with Deemed Supply because of the quantity of the Prohibited Drug in your possession, but you possessed the Prohibited Drug for another reason other than to supply it.
- You have a licence for Supply of the Prohibited Drug under the Poisons and Therapeutic Goods Act 1966.
- You have an authority from the Department of Health and supply the Prohibited Drug for a scientific research purpose.
- You are acting in accordance with a direction by the Commissioner of Police to destroy the Prohibited Drugs.
Maximum sentences for Drug Supply charges:
Maximum sentences depend on the quantity of the Prohibited Drug you have been charged with supplying. Check out: Maximum Sentences for Supply of a Prohibited Drug Charges.
Sentences can be increased if the Supply was to a person under 16 years old.
Don’t panic. Maximum sentences are usually reserved for the worst type of offending, when a defendant has a long criminal history. If you decide to plead guilty to a charge of Supply of a Prohibited Drug, your lawyer will help you identify mitigating factors the sentencing court will take into account. For more on likely sentencing considerations and outcomes for Supply of a Prohibited Drug offences in your circumstances, see our sentencing information.
The definition of “supply” does not require money to change hands, so you can be charged with Supply of a Prohibited Drug for sharing drugs with your friends.
Facing Court for Drug Supply?
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