In NSW, supplying a prohibited drug is an offence under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW).
The penalties for supplying a prohibited drug can range from a fine through to life imprisonment in matters involving the supply of a large commercial quantity.
What constitutes Supply of a Prohibited Drug?
Under section 3 of the Drug Misuse and Trafficking Act 1985 (NSW), the term ‘supply’ includes “sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising , directing, causing, suffering, permitting or attempting any of those acts or things.”
Additionally if you are found in possession of a prohibited drug with a quantity over the ‘traffickable quantity’ for that particular drug then you may be charged with supply under section 29 of the Act, which is sometimes referred to as ‘deemed supply’. The traffickable quantity differs between drugs and these quantities can be found in Schedule 1 of the Act.
What the Police Must Prove
For an accused to be found guilty of an offence of supply prohibited drug the prosecution must prove that the accused:
- Supplied or knowingly took part in the supply of;
- A prohibited drug
For the purpose of the second element it is a prohibited drug is taken to be what you purported it to be. The element will be satisfied if you sold a person a quantity of sugar but told them it was cocaine.
Possible defences for Supply of a Prohibited Drug
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:
It is a defence to a charge of supplying a prohibited drug in circumstances where you are in possession of a prohibited drug for the purpose of returning them to someone else rather than with the intention to supply. An example of this is when someone gives you a prohibited drug to hold and you have the intention of returning the drugs to them. In this situation you will not be found guilty of supply but rather possession which carries lesser penalties.
It is a defence to the charge of supplying a prohibited drug, where the supply is a deemed supply, where you can demonstrate that the drugs were for personal use. If you successfully raise this defence you will be found guilty of possession of prohibited drugs.
It is a defence to many offences where the offending conduct was done due to 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
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.
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.
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 Supply of a Prohibited Drug in NSW
The penalties for supplying a prohibited drug in NSW vary substantially depending on the quantity of drug you are alleged to have supplied. In matters involving supply of a large commercial quantity the maximum penalty is life imprisonment. The type of drug that is being supplied can have an impact on the length or type of sentence that is imposed. As a general rule if the supply is substantial the courts will consider a term of imprisonment either served by way of full time custody or in the community.
The range of penalty that the courts can impose are as follows:
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 Corrections 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 Corrections 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 Corrections Order
An Intensive Corrections 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 Courts 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. ICOs 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 Supply of a Prohibited Drug charge
Our Lawyers at first offence legal are experts in matters of drug supply. We have successfully defended matters involving substantial quantities of prohibited drugs.. 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 supplying 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.