The Law, Defences and Penalties for Drug Supply in New South Wales

by Ugur Nedim

A young woman has been charged with drug supply after allegedly being found with 1000 MDMA (‘ecstasy’) tablets at a music festival.

New South Wales police officers are reported to have found 800 tablets in the woman’s bra and 200 that were concealed internally when they strip searched the 18-year old at the Epik Music Festival held at Sydney Showground.

They say they also found Ketamine (or ‘special K’), an anaesthetic which can produce psychedelic effects.

She was arrested and charged with drug supply pursuant to the deeming provisions of the law, which provide that a person can be charged with supply for merely possessing more than a trafficable quantity of illegal drugs, even though there is no evidence of actual drug supply.

The offence of drug supply

Supplying a prohibited drug is an offence under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (‘the Act’).

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You supplied, or took part in the supply of, a substance,
  2. The substance was a prohibited drug, and
  3. You knew, or believed at the time, that the substance was a prohibited drug.

Section 3 of the Act explains that ‘supply’ “includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in 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.”

Deemed drug supply

Section 29 of the Act enables a person to be found guilty of drug supply if they are found to be in possession of at least a ‘trafficable’ quantity of prohibited drugs, even if there is no evidence they actually took part in a drug supply.

The provision is commonly known as ‘deemed drug supply’ and is often used in circumstances where the police do not have evidence other than the drugs themselves.

Where a person is charged with deemed drug supply, he or she then bears the onus of proving – ‘on the balance of probabilities’ (ie more than a 50% chance) – that the drugs were for purposes other than supply eg for personal use only.

Examples of ‘traffickable quantities’ of drugs include:

  • 75 grams of MDMA (or ‘ecstasy),
  • 3 grams of amphetamines, cocaine or heroin, and
  • 300 grams of cannabis.

Exclusive possession

The case of R v Filippetti (1978) 13 A Crim R 335 made clear that, in order to establish the offence of drug possession or supply, the prosecution must prove beyond a reasonable doubt that the defendant had ‘exclusive possession’ of the drugs in question.

This can be difficult for the prosecution to do in circumstances where the drugs were located in a common area of a home – such as in the lounge room, kitchen or bathroom – where more than one person was living at the premises, or where drugs are found in back seat, glove compartment or boot of a car which has been recently occupied by more than one person.

Temporarily holding drugs for owner

The case of R v Carey (1990) 20 NSWLR 292 established that a person cannot be found guilty of drug supply in circumstances where he or she temporarily held the drugs for the owner, intending to return them.

The person may, instead, be found guilty of drug possession; which is an offence carrying a maximum penalty of two years in prison.

Illegal searches

Section 21 (personal searches) and section 36 (vehicle searches) of the Law Enforcement (Powers and Responsibilities) Act 2001 prohibits police from conducting a search unless they have a suspicion “on reasonable grounds” that there is something stolen or otherwise unlawfully obtained, or used or intended to be used in connection with a relevant offence, or a dangerous article that is being or was used in or in connection with a relevant offence, or a prohibited drug or plant.

The sections do not elaborate on the meaning of reasonable suspicion,  but the case of R v Rondo (2001) 126 A Crim R 562 set down that:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility, that the drugs were present at the particular time,

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown, and

(c) The source of the officer’s information and its content must be assessed in light of all surrounding circumstances.

Where there is no such ‘reasonable suspicion’, a search is considered to be illegal and any evidence derived as a result – eg of drugs found – is subject to being excluded under the provisions of section 138 of the Evidence Act 1995 (NSW).

That section provides that illegally or improperly obtained evidence must be excluded “unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”.

Matters the court considers when determining whether to exclude the evidence include:

  • the value and importance of the evidence,
  • the seriousness of the offence, and
  • the gravity of the impropriety or contravention, including whether it was deliberate or reckless.

Given the current state of the law, there is an argument that situations which may not amount to a ‘reasonable suspicion’ include:

  • where there is a positive indication by a sniffer dog, in the absence of other evidence suggestive of the presence of drugs,
  • where police are patrolling a known drug area and decide to search someone because they appear to be nervous,
  • where a person is stopped for a Random Breath Test and appears to be nervous or agitated,
  • where police decide to search someone because he or she – or someone he or she is with – has previously been convicted of drug offences, or
  • any ‘random’ or ‘arbitrary’ search.

Situations which may amount to a ‘reasonable suspicion’ include:

  • where police have observed what they believe to be a drug transaction,
  • where police have received a report of recent drug activity including a detailed description which matches the suspect and/or vehicle to be searched,
  • where a person’s actions and demeanour are highly suggestive of having drugs, eg discarding or concealing an object that appears to be drugs, or
  • where a person has provide police with informed consent to a search.

Penalties for drug supply

The maximum penalty for drug supply depends on the type of drug, the quantity and the court in which the matter is finalised.

Categories of drug type / quantity

Drug Type Small Quantity Indictable Quantity Commercial Quantity Large Commercial Quantity
Ecstacy (MDMA) 0.25grams 1.25grams 125grams 500grams
Cocaine 1gram 5grams 250grams 1kg
Amphetamines 1gram 5grams 250grams 1kg
Heroin 1gram 5grams 250grams 1kg
Cannabis 30 grams 1kg 25kg 100kg

 

Maximum penalties

Quantity Category When Dealt with in Local Court When Dealt with In District Court
Less than Small Quantity 2 years prison and/or $5,500 fine 15 years prison and/or $220,000 fine
More than Small Quantity but not more than Indictable Quantity 2 years prison and/or $11,000 fine 15 years prison and/or $220,000 fine
More than Indictable Quantity but not more than Commercial Quantity 2 years prison and/or $11,000 fine 15 years prison and/or $220,000 fine
Not less than Commercial Quantity but not more than Large Commercial Quantity Not Applicable 20 years prison and/or $385,000 fine
Not less than Large Commercial Quantity Not Applicable Life imprisonment and/or $550,000 fine

The ‘admixture’ is applicable

Significantly, section 4 of the Act makes it clear that the relevant weight is the ‘admixture’; which is the total weight of the substance that contains the drug, not just the pure weight of the substance within it.

So, for example, if one kilogram of a substance is found that has a cocaine purity of 10%, the entire one kilogram is the relevant weight for the purposes of the Act, not just the 100 grams of pure cocaine contained within it.

Defence

The most common defence to drug supply is ‘duress’, which is where a person engaged in the conduct:

  1. Due to a threat of death or serious injury to him or her, or to a member of his or her family,
  2. There was no reasonable way to render the threat ineffective, and
  3. The conduct was a reasonable response to the threat.

Less common defences which are nevertheless available include necessity and self-defence.

Where any evidence of a defence is raised, the prosecution must then prove beyond reasonable doubt that the defence does not apply.

If they are unable to do so, the defendant must be acquitted.

Going to court for drug supply?

If you are facing court over allegations of drug supply, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free consultation with a criminal defence lawyer who has the knowledge, specialisation and experience to achieve the optimal outcome.

Our defence lawyers have an outstanding track record of having drug supply charges withdrawn due to insufficiency of prosecution evidence (including a lack of evidence of exclusive possession or other weaknesses and inconsistencies), or illegal search, or the availability of a legal defence (such as duress), or downgraded to drug possession due to a lack of evidence of actual supply (eg through overcoming the onus for required for deemed supply, or by using the Carey defence for actual supply), or thrown out of court where cases reach defended hearings or jury trials.

Our firm is often able to achieve positive results in situations where our clients have been advised by other lawyers that the prosecution evidence is insurmountable, and that they should simply ‘plead guilty’ to drug supply.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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