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Section 25 Drug Misuse and Trafficking Act 1985
Drug Supply

Section 25 of the Drug Misuse and Trafficking Act 1985 is Drug Supply and is extracted below.

If you would like an experienced drug defence lawyer to provide accurate advice and outstanding representation for your Drug Supply case, call Sydney Criminal Lawyers® today on (02) 9261 8881 for a free first appointment.

Our criminal lawyers are experts in defending drug charges and have a proven track record in obtaining superior results in all types of drug cases.

The Legislation

25 Supply of prohibited drugs

(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.

(1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence.

(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

(2A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence.

(2B) Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly.

(2C) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence.

(2D) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

(2E) It is a defence to a prosecution for an offence under subsection (2C) or (2D) if the defendant establishes that the defendant had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person who was procured to supply, or take part in the supply of, the prohibited drug was of or above the age of 16 years.

(3) Where, on the trial of a person for an offence under subsection (2) or (2D), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2C), respectively, and the person shall be liable to punishment accordingly.

(4) Nothing in this section renders unlawful the supply of a prohibited drug by:
(a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or
(b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or
(c) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA,
or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom paragraph (a), (b) or (c) applies.

(5) Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10 (2) (d).

Penalties for Drug Supply

The maximum penalties for ‘drug supply’ depend on:

1. Drug type,

2. Drug quantity, and

3. Whether the case is dealt with in the Local or District court.

Here are the maximum penalties for the most commonly prosecuted types of drugs:

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
At Least Small Quantity but Less Than Indictable Quantity
2 years prison and/or $11,000 fine
15 years prison and/or $220,000 fine
At Least Indictable Quantity but Less Than Commercial Quantity
2 years prison and/or $11,000 fine
15 years prison and/or $220,000 fine
At Least Commercial Quantity but Less Than Large Commercial Quantity
Not Applicable
20 years prison and/or $385,000 fine
At Least Large Commercial Quantity
Not Applicable
Life imprisonment and/or $550,000 fine

Recent Cases

Client Granted Bail for Commercial Drug Supply, While All Co-accused Refused

Our client is a 24-year old overseas student. Police alleged that he and 7 others were involved in Supplying a Commercial Quantity of a Prohibited Drug and Participating in a Joint Criminal Enterprise. The suspects were alleged to have communicated through coded messages on their mobile telephones. All were charged and brought before Manly Local Court. For the purposes of bail, the offences are ‘show cause’ offences, which means the defence bears the onus of establishing the defendant does not pose an ‘unacceptable risk’ to the community, and that imprisonment would therefore be unjustified. The prosecution strenuously opposed bail for all 7 defendants on the basis of the alleged strength of the prosecution case and likelihood of a full-time custodial sentence in the event of a conviction. Each of the defendants had similar evidence against them and were alleged to be at similar levels in the hierarchy of the enterprise. However, our client (and two others) were at a significant disadvantage because they were from overseas and had limited links to the local community – which makes it more difficult to achieve bail. Our defence team got to work and quickly prepared material addressing a number of the bail concerns, including the risk of flight. We took detailed instructions with a view to disputing the prosecution’s submissions regarding the strength of the prosecution case. By the time we were ready to run our client’s bail application, all 7 co-accused had been refused bail. We presented material and made detailed verbal submissions regarding the law. The submissions included reference to the pivotal NSW Supreme Court cases of R v Melmeth [2015] and the NSW Court of Criminal Appeal case of DPP v Mawad [2015], which made a number of findings in respect of the meaning of ‘show cause’, including the applicable test. Among other things, the cases establish that ‘exceptional circumstances’ do not necessarily need to be shown to overcome the ‘show cause’ hurdle – which is a common but incorrect assumption amongst practitioners. Rather, a combination of factors including proposed bail conditions can meet the test, and alleviate any bail concerns. The presiding magistrate was convinced and saw fit to grant bail on strict conditions, including daily reporting, surrender or passport and non-association with co-accused and witnesses in the case. The outcome demonstrates that with the right knowledge, meticulous preparation and persuasive presentation, bail can be achieved in ‘show cause’ cases regardless of the seriousness of the allegations and the findings against co-accused. The merits of each case must be assessed independently, and it is important to engage specialist criminal defence lawyers who are knowledgeable, thorough and persuasive.

Not Guilty of Drug Supply and Proceeds of Crime

Our client is a 30 year old Truck Driver from the South Coast of NSW. Police observed a car that was double parked in the middle of street in the Sydney CBD, which they claimed is ‘well known for drug use and supply’ They conducted a vehicle enquiry through their Mobipol system to obtain the registration particulars of the car. The enquiry suggested the vehicle was registered to a family member of an organised crime group, and that the member was previously convicted of drug supply. Police approached the vehicle and saw four individuals inside. The owner and his associate were in the front seats, and our client and a television presenter in the back. Police questioned each of the occupants, and our client disclosed that he was in possession of a quantity of cocaine. They searched our client and located a large resealable bag of cocaine down the front of his pants, two small bags of cocaine in his wallet, nearly $5,000 in cash and two mobile telephones. They arrested and conveyed our client to the police station, where he participated in an interview and made certain admissions. One of the phones in our client’s possession contained messages indicative of drug supply. Our client told police that this phone did not belong to him, but to one of the other occupants. Our client was charged with drug supply due to the quantity of drugs in the large resealable bag and contents of the phone messages, and with proceeds of crime for the cash found on him. Our defence team undertook a considerable amount of work establishing there was insufficient evidence to prove ownership of the phone and gathering evidence regarding duress. Duress is when a person commits an offence because threats are made against them to such an extent that a reasonable person in their position would comply. The case ultimately proceeded to a jury trial in Downing Centre District Court. Once evidence of duress was raised, the prosecution made submissions that a serious threat of violence could not be established as our client was aware of the presence of police nearby. It was further submitted that the text messages suggesting supply were from our client, as other evidence suggested he was indeed the sender of those transmissions. Our cross examination of the prosecution witnesses, including expert witnesses, supported by documents gathered by the defence completely defeated the prosecution’s ability to negative the defence of duress. It was a systematic and complete dismantling of the prosecution case which meant we did not need to put our client on the witness stand to testify and face cross examination. In the result, the jury returned verdicts of not guilty for both charges, and the alleged proceeds of crime was refunded to our client.

No Criminal Record for 18 ‘Ecstacy’ Tablets

Our client is a 27 year old man who is on a student visa. Police were conducting a drug dog operation within the Kings Cross Entertainment precinct. They were walking along the footpath when they observed our client see them and immediately cross the road. Police followed our client and say they observed him cross back, in what they viewed to be an active attempt to avoid the sniffer dog. They approached our client and activated their Body Worn Video camera. They asked if our client would consent to a search, and he did. During the search, police located 2 resealable plastic bags containing a total of 18 capsules of MDMA (‘ecstacy’). They arrested our client and conveyed him to the police station, where our client participated in an interview and admitted owning the tablets. The law in NSW is that where the weight of a substance containing MDMA is above 0.75 grams, police are able to charge the person with ‘drug supply’ as it is deemed the drugs were in the person’s possession for the purpose of supply. In that case, police do not need to prove that the person intended to supply the drug; rather the onus of proof shifts to the defendant to prove on the balance of probabilities that he or she possessed the drugs for something other than supply, most commonly for personal use only. The weight of the drugs in our client’s possession was 4.27 grams, well in excess of the ‘deemed’ quantity. He was subsequently charged with supplying a prohibited drug. As the weight was more than 1.25 grams, the supply charge became ‘strictly indictable’ which means it must be finalised in the District Court rather than the Local Court. This also meant the matter was taken over by the Office of the Director of Public Prosecutions (DPP). We wrote detailed ‘representations’ to the DPP regarding the fact the drugs were in our client’s possession for personal use only, requesting the downgrading of the supply charge to drug possession – which is far less serious and would allow the case to remain in the Local Court. After intense negotiations, the DPP ultimately agreed to our request. Our client then pleaded guilty to drug possession-only in the Local Court. In preparation for our client’s sentencing proceedings, we assisted him to prepare a Letter of Apology, Character References and also guided him to attend the SMART Recovery Program. As he is an Italian national, we obtained his Italian criminal record (which was clean) and had it translated. We made detailed submissions in regarding his remorse, steps to taking control of his substance use and the impact of a conviction on his desire to work in the future as a professional. We also compiled relevant case-law which makes it clear a magistrate can impose a ‘non-conviction’ despite the number of pills. The Crown opposed our request and made submissions for a criminal conviction and significant penalty. We ultimately persuaded the Magistrate not to impose a criminal record on our client, and released him on a two-year good behaviour bond without conviction. Our client was ecstatic and looks forward to pursuing his career.

No Criminal Record for 14 Ecstacy Tablets

Our client is a foreign national on a working holiday visa. A few months into her stay in Australia, she decided to attend a music festival with a group of friends. On the day of the festival, she was pressured to carry 14 MDMA (‘ecstacy’) tablets into the festival grounds. The male members of the group, including her boyfriend at the time, felt that as a female she would come under the least suspicion from security and police, who were checking for illegal drugs at the festival entry. A sniffer dog gave a positive indication and our client quickly admitted to possessing the tablets. She was then arrested and charged with ‘drug supply’ due to the number of tablets found. In that regard, the law provides that a person found with more than the ‘trafficable quantity’ of drugs can be charged with supply. This is known as ‘deemed supply’. The trafficable quantity of MDMA is just 0.75 grams. If a person is charged with deemed supply, the onus of proof then shifts to them to prove ‘on the balance of probabilities’ that they were in possession of the drugs for the purpose of something other than supply. The law also provides that a person who holds drugs momentarily for the owner with a view to returning it is not guilty of supply. An issue for our client was that there were a number of people to whom the drugs were to be distributed upon entry to the festival, and she made admissions to police that she intended to supply the tablets to these people. Despite the issues, our defence team wrote a detailed letter – known as ‘representations’ formally requesting withdrawal of the supply charge provided that our client pleaded guilty to drug possession. She pleaded guilty to that lesser charge and we assisted her in gathering a range of subjective materials, including documents in relation to the impact of a criminal conviction. After extensive verbal submissions in the local court, and despite submissions against a ‘non conviction’ by the prosecution, Her Honour was persuaded to impose a two-year good behaviour bond without a criminal conviction. This is an excellent result given the number of tablets involved.

No Criminal Record for ‘Deemed Supply’ of 15 Ecstacy Tablets

Our client is a 24 year old student who was found to be in possession of 15 ecstasy tablets. During the police interview, he admitted intending to supply the tablets to his friends once they were all together inside the hotel they were intending to meet. Police charged our client with ‘deemed supply,’ alleging that he was in possession for the purpose of supply, as the current definition of supply extends to an intention to supply. The offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000. Despite our client’s admissions, we successfully persuaded police to withdraw the supply charge on condition he pleads guilty to the lesser charge of drug possession; which carries a maximum penalty of two years. Our client entered a plea of guilty to that charge and we assisted him to prepare a range of subjective materials, including a letter of apology, character references and a letter from a psychologist. Due to the number of tablets, the Local Court magistrate imposed an 18 month good behaviour bond on our client under ‘section 9’ of the Crimes (Sentencing Procedure) Act – which comes with a criminal record. We appealed the severity of the penalty to the District Court, where we ultimately persuaded the judge to deal with our client ‘without conviction’. He is now free to pursue his future career in accounting without the obstacle of a criminal record.

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