In NSW, it is an offence under section 24 of the Drugs Misuse and Trafficking Act 1985 (NSW) to manufacture or take part in the manufacture of prohibited drugs.
The offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000 for all substances, except cannabis. If the drug is cannabis, the maximum penalty is 10 years imprisonment and/or a fine of $220,000. These penalties increase if the amount of the substance manufactured is greater than the relevant commercial quantity or large commercial quantity set out in schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW).
What Constitutes As Drug Manufacturing?
Manufacturing a prohibited drug in NSW includes any action that contributes to the following: make up, prepare, produce, process (including by extracting or refining), package or labeling.
Examples of manufacturing can include:
- Pressing powders into pill form
- Extracting pseudoephedrine to be used to create other drugs
- Cooking crystal methamphetamine or other drugs
What Must The Police Prove?
To be found guilty of an offence of manufacturing or knowingly take part in the manufacture of prohibited drugs the prosecution must prove:
- You were manufacturing or producing prohibited drugs; OR
- You were aware of and took part in manufacturing or producing prohibited drugs; and
- The substance you manufactured, produced or assisted in manufacturing or producing was a prohibited drug.
Possible Defences To A Drug Manufacturing Charge
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
Necessity
The defence of necessity is a defence that is available to a number of offences. Necessity can be raised when a person commits an offence in circumstances that make committing the offence necessary to avoid serious consequences.
For the defence of necessity it must be found that the person committed the criminal offence:
- In order to to avoid certain consequences which would have caused ‘irreparable evil’ to themselves or another.
- The accused honestly and reasonably believed that they were in a situation of imminent peril and it was necessary for him or her to commit the acts that constituted the offence, and
- The acts to avoid the peril must not have been disproportionate to the threat of danger.
The accused must raise the defence of necessity but once it is raised the prosecution must disprove the defence beyond a reasonable doubt.
Duress
It is a defence if the offending conduct was done under duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
Element 1:
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
Element 2:
The second element is an assessment of the circumstances surrounding the threats. When considering this element the Court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
Element 3:
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Penalties For Drug Manufacturing In NSW
Manufacturing prohibited drugs is taken very seriously by the Court’s. Depending on the quantity of drugs the penalties can range from a good behaviour bond by way of a conditional release order to a term of imprisonment.
The maximum penalty for manufacture prohibited drug depends on the quantity of the manufactured drug.
Manufacturing a prohibited drug and producing less than the commercial quantity carries a maximum penalty of:
- 15 years imprisonment,
- $220,000 fine,
- Or both.
Manufacturing a prohibited drug and producing not less than the commercial quantity but not more than the large commercial quantity carries a maximum penalty of:
- 20 years imprisonment with a standard non-parole period of 10 years,
- $385,000 fine,
- Or both.
Manufacturing a prohibited drug and producing not less than the large commercial quantity carries a maximum penalty of:
- Life imprisonment with a standard non-parole period of 15 years,
- $5500,000 fine,
- Or both.
The Court’s take a manufacture charge very seriously and even for first offenders the court will likely sentence you to a period of imprisonment especially if the matter is dealt with on indictment in the District Court. However, the court still has a range of sentencing options available to them at their discretion.
The Court may impose any of the following:
Fine
Where a monetary penalty is prescribed under legislation the Court is able to finalise matters by way of fine. This normally is a reflection that the type of offending is of lower objective seriousness but that some form of penalty must be imposed.
Conditional Release Order
Conditional release orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Correction Order
Community correction order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an intensive corrections order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the Court can tailor to reflect the nature of the offender and the offence. The Court can select from the range of conditions, such as, supervision by community correction officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Correction Order
An intensive correction order (ICO) is a custodial sentence that the Court decides can be served in the community. Community safety is the Court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Court’s must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICO’s are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the Court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time Imprisonment
Full time imprisonment is the most serious penalty a Court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the Court will apply a non-parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the non-parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book A Free Consultation For A Drug Manufacturing Charge
Our lawyers at First Offence Legal are experts in fighting against charges of drug manufacturing. We have successfully defended matters involving substantial drug manufacture. We are also expert negotiators and have on many occasions negotiated with police for charges to be downgraded or withdrawn.
If you, or anyone you know, has been charged with an offence of manufacture a prohibited drug you should contact First Offence Legal and book your free no obligation consultation. Remember you can always make First Offence Legal your first defence.