By Zeb Holmes and Ugur Nedim
Under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW), a person can be found guilty of supplying a prohibited drug on an ongoing basis if they supply, on three or more separate occasions during any period of 30 consecutive days, a prohibited drug (other than cannabis) for financial or material reward.
The maximum penalty for the offence is 20 years’ imprisonment and/or a fine of $385,000.
It is a ‘strictly indictable’ offence, which means that it must be finalised in a higher court such as the District Court – it cannot be disposed of in the Local Court.
The drugs that are supplied need not be the same – for instance, a person who supplies ‘ecstacy’ on one occasion, cocaine on another, and heroin on a third occasion within a 30 day period may be liable for the offence.
However, the prosecution must prove beyond reasonable doubt that the supply was for material reward or financial advantage – which is not a requirement of a regular ‘supply’ charge.
Perception of the offence
‘Ongoing supply’ is generally considered to be more serious than a single count of drug supply under section 25 of the Act. In Fayd’herbe v R  NSWCCA 20, Adams J remarked:
“Significant sentences must be imposed in such cases in order [to] give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant.”
This case further states that offences under s25A will attract a full-time custodial sentence unless there are ‘exceptional circumstances’.
In determining the appropriate sentence, judges will consider a wide range of factors.
‘Objective seriousness’ describes the gravity of the offence itself, without reference to any mitigating factors.
Although the offence of ‘ongoing supply’ is inherently serious due to parliament’s strong emphasis of deterring others from engaging in organised drug supply for financial or material gain, the amounts supplied, number of supplies and quantum of gain are important in assessing where the offence lies within the range of such offences.
So, for example, 3 supplies within 30 days of very small amounts for little money would obviously be less serious than 10 supplies of larger quantities for significant financial gain.
Aggravating and mitigating factors
Section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 sets out a range of factors that a sentencing court must take into account, where relevant, when determining a sentence.
Aggravating factors are those which can lead to a more severe penalty, and include:
- Previous record of convictions
- Being with another person (‘in company’)
- Committing the offence in the presence of a person under the age of 18
- Causing substantial loss, damage or emotional harm
- Having disregard for public safety
- Significant planning
- Financial gain
An aggravating factor is only relevant if it is not already an ‘element’, or ingredient, of the offence. So, for example, financial gain would not be considered an aggravating factor in the context of ‘ongoing supply’, as it is already an element of the offence.
Mitigating factors are those which can lead to a reduced penalty, and include:
- No prior record, or an insignificant record
- Evidence of good character
- Evidence of remorse
- Unlikelihood of reoffending
- Young or poor health, including any mental condition
- Good prospect of rehabilitation
- Efforts at restitution
However, these factors may be given different weight in the context of ‘ongoing supply’
- Good character
However, these factors have significantly less weight where the offence involves deliberate and planned criminality, as is generally associated with ongoing supply offences: Ha v R  NSWCCA 141 at .
- Relevance of addiction
A person who is not a drug user but supplies drugs out of greed was placed in the worst category of suppliers in Nguyen v R  NSWCCA 15 at .
The criminality of a user who sells primarily to feed a habit is considered to be lower. However, the weight attributed to a person’s drug addiction is diminished if they are anything above a street level dealer; R v Bernath  1 VR 271.
The court in R v Henry (1999) 46 NSWLR 346 at  remarked that addiction is also relevant in determining, “the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act …”
- Vulnerability of the Offender
The case of R v Shi  NSWCCA 135 is authority for the proposition that youth, immaturity and other indicia of vulnerability are mitigating factors which can lead to a reduced sentence.
- Assistance to Authorities
Section 23 of the Crimes (Sentencing Procedure) Act 1999 allows courts to reduce a sentence where the offender provides valuable assistance to law enforcement authorities. A range of matters will be taken into account when determining the quantum of the reduction, and the ultimate sentence must not be “unreasonably disproportionate to the nature and circumstances of the offence.”
The case of In R v Perrier (1990) 59 A Crim R 164 is authority for the proposition that assistance to authorities is of particular important to ongoing supply cases, especially where the offender’s assistance leads to the detection, apprehension and conviction of those above them in the hierarchy of the enterprise. In that case, McGarvie J remarked that the assistance of minor players is often the only way to dismantle a criminal enterprise, and those who put themselves in danger by providing valuable assistance should be duly rewarded.
So the ultimate penalty handed-down to those who plead guilty to, or are found guilty of, ongoing drug supply depends on a range of factors.
It is also important to note that the charge can often be withdrawn, thrown out of court or downgraded to the less serious charge of ‘drug supply’ if the prosecution is unable to prove one or more of its ingredients beyond reasonable doubt.
If you are charged with drug supply, it is important to seek advice from a criminal defence lawyer who is experienced in representing clients in serious drug cases.