Until recently, cases of drug supply which involved more than the ‘indictable quantity’ but less than the commercial quantity could not be finalised in the NSW Local Court – they were ‘strictly indictable’ which meant they had to be committed to a higher court such as the District Court to be dealt with – whether by way of a sentencing hearing (in the event of a guilty plea) or a trial (in the case of a not guilty plea).
Indictable drug supply
This applied, for example, to quantities of MDMA between 1.25 and 125 grams, amphetamines, cocaine or heroin between 5 and 250 grams, and cannabis between 1 and 25 kilograms.
However, the law in New South Wales has changed to allow the Local Court to finalise these types of cases.
Indictable drug supply is now a ‘Table 1’ offence
The change has occurred by virtue of the insertion of a new section 29A into Schedule 1 of the Criminal Procedure Act 1986 (NSW).
The Schedule contains tables of indictable offences which can be dealt with summarily in certain circumstances.
‘Indictable offences’ are those which can be dealt with in higher courts such as the District or Supreme Court, whilst ‘summary’ cases are dealt with in the Local Court when they are not accompanied by indictable charges.
The new section is contained in Table 1 of the Schedule, which means indictable supply cases are now dealt with summarily unless the prosecution or defendant elects (chooses) to have them committed (referred) to a higher court.
What does this mean?
In practical terms, this means many more drug supply cases are likely to be finalised in the Local Courts, where the maximum penalty for indictable supply is 2 years in prison and/or a fine of $11,000- far lower than the 15 years and/or $220,000 fine applicable in the District Court.
Saving time and expense
Apart from the lower penalties, the amendment has the potential to save defendants time and money – as they will not be required to fund protracted and costly District Court proceedings, such as jury trials.
Rather, many more cases likely to remain in the Local Court where proceedings are finalised in a shorter period of time, and where defended hearings are before a Magistrate, rather than Judge and Jury.
This may also relieve some of the pressure on the District Courts, where caseloads have doubled since 2010.
Another potential ‘upside’ is that a right of appeal exists from the Local to the District Court, and such appeals take a lot less time and are generally far less expensive than appeals from the District Court to the NSW Court of Criminal Appeal (NSWCCA).
They are also less risky, because unlike the NSWCCA, the District Court cannot impose a more severe penalty without firstly warning defendants and giving them the opportunity to withdraw the appeal (which is called a ‘Parker warning‘).
Prosecutors may be less likely to downgrade charges
A potential downside is that prosecutors may be less likely to downgrade charges of drug supply to drug possession, as they have been doing to avert the expense of District Court proceedings and jury trials.
To explain, prosecution guidelines require “the likely length and expense of a trial” to be considered when determining whether to downgrade or withdraw charges.
Before the recent changes, prosecutors would frequently consider the fact that a not guilty verdict for an indictable supply case would cost taxpayers tens or even hundreds of thousands of dollars in prosecution costs – especially where a lengthy jury trial was expected – when deciding what to do with a case. As a result, prosecutors often agree to reduce charges of ‘supply’ to ‘possession’, in exchange for a guilty plea.
Under the new rules, the cost of prosecuting a not guilty plea will generally be far less – as it will only involve a potential hearing before a Magistrate in the Local Court (which takes a lot less time than a District Court jury trial).
Until now, prosecutors have been especially amendable to downgrading charges of ‘deemed supply’ – which is where a defendant is charged with drug supply on the basis that they are in possession of more than the ‘trafficable quantity’ of a prohibited drug, even where there is no evidence of actual supply. In these cases, the defendant bears the onus of establishing on the balance of probabilities that the drugs were in his or her possession for something other than supply, eg for personal use.
Under the new regime, however, prosecutors may be more likely to run supply matters to Local Court defended hearings rather than downgrade them to avert the length and expense of higher court proceedings.
There is also the ‘big fish in a small pond’ concern – in other words, the possibility that Magistrates who are not used to finalising such large drug supply cases will see them as very serious and be more likely than a District Court Judge to impose sentences of imprisonment. By the same token, it is acknowledged that this concern is alleviated to an extent by the outlined right of appeal to the District Court.
Another potential downside, of course, is there may be more pressure on the Local Courts, where magistrates already deal with substantial case-loads on a daily basis.