If you are found in possession of more than a certain quantity of drugs, you can be charged with deemed supply, even if you did not actually supply the drugs to anyone else and had no intention of doing so.
By contrast, a standard drug supply charge requires there to be some evidence you were supplying or intending to supply the drugs to someone else, or that you knowingly took part in the process of supply.
With deemed supply, it is enough for you to have a quantity of drugs in your possession that is equivalent to or over the amount considered to be a traffickable quantity.
If police want to charge you with deemed supply, you need to have a certain quantity of drugs in your possession.
This is known as a ‘traffickable quantity’.
The traffickable quantity varies depending on the specific drug.
The quantity is 300 grams or more for cannabis, and three grams for cocaine, amphetamines and heroin, or 0.75 grams of MDMA (ecstacy).
What are the penalties for deemed supply?
Deemed supply comes with the same penalties as drug supply charges.
The penalties vary depending on the type of drug and the quantity found, but can be as severe as life imprisonment.
Generally, the courts treat these charges seriously, and you could face the possibility of a prison sentence in certain circumstances.
Deemed supply is an indictable offence, which means that it can go from the local court to a higher court such as the district court.
However, it can be dealt with summarily in the local court if the quantity is less than the ‘strictly indictable’ quantity.
The maximum penalty for deemed drug supply if dealt with in the local court is a two-year prison sentence and/or a fine of $5,500.
If it is dealt with in the district court, the maximum penalty will be much higher and will depend on the type of drug and the quantity.
If you are facing deemed drug supply charges, it is a good idea to seek the advice of a lawyer as soon as possible, even if you intend to plead guilty.
How can I defend myself against deemed supply charges?
Under the Drug (Misuse and Trafficking) Act 1985 (NSW), if you are found with a traffickable quantity of a prohibited drug in your possession, custody or control it can be deemed to be for supply unless you can prove that the drug was for something other than supply, such as for your own personal use or you were holding the drug for someone else.
This means you can be charged with the offence of drug supply despite the absence of evidence you actually supplied the drug to anyone else or intended to do so.
If the prosecution can prove beyond reasonable doubt that you actually possessed the drug, and charges you with deemed supply on that basis, you will need establish on the balance of probabilities (that it was more likely than not) that the drug was in your possession for something other than supply; most frequently for personal use.
Proving that the drugs were for personal use rather than supply is easiest when there are no other indications of drug supply present, such as large sums of money, multiple mobile phones and resealable plastic bags.
In some cases, it’s possible to get deemed drug supply charges withdrawn by writing to whoever is prosecuting the case, which could either be the NSW Police Service or the Director of Public Prosecutions.
Written applications should highlight the lack of evidence of supply, the evidence to support the drugs being for personal use, or the likelihood that they were being held for someone else.
Holding drugs for the owner with the intention of giving them back shortly thereafter does not count as supply and can be a valid defence if you are facing deemed drug supply charges.
If you can have your charges of deemed supply withdrawn, or present a strong defence, you can increase your chances of avoiding a criminal conviction and a potential prison sentence.