Drug Supply is an offence under section 25 of the Drug Misuse and Trafficking Act 1985 that requires proof beyond reasonable doubt that a person supplied, or knowingly took part in the supply of, a substance, that the substance was a prohibited drug, and that the person knew or believed at the time that the substance was a prohibited drug
A person must be found not guilty if the prosecution is unable to prove these requirements.
To ‘supply’ includes to sell or 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.
To ‘take part in’ means to:
- Take, or participate in, or cause any step to be taken, in the process of the supply,
- Provide or arrange finance for any such step, or
- Provide the premises in which any such step is taken, or suffering or permitting any such step to be taken in premises where you are the owner, lessee or occupier, or in the management of.
Some of the most common prohibited drugs are:
- MDMA (or ‘ecstasy’)
- LSD (acid), and
The maximum penalty for a drug supply offence depends on the type of prohibited drug involved and the weight of that drug, as well as whether the case is finalised in the Local Court or a higher court such as the District Court.
The maximum penalty ranges from two years to life in prison, but it’s important to be aware the court can impose any one of a number of alternatives to imprisonment, including ‘non conviction orders’, fines and good behaviour bonds such as community correction orders and intensive correction orders.
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.
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:
Bail Granted for 4 Charges of Supplying a Prohibited Drug and Possessing Fraudulent ID
Our client is a 29-year old man living near Sydney CBD who had come to Sydney on a three month visa.
While at the airport about to board onto a return flight home, police detained and arrested him, took him into custody and charged him with two counts of supplying prohibited drugs and one count of possessing fraudulent identification in the commission of an indictable offence.
Police say they had been investigating our client since his arrival into Australia, on suspicion of being part of a criminal organisation involved in the importation of prohibited drugs.
The police prosecutor strongly opposed bail, submitting to the court that authorities were in the process of laying serious charges including the importation of a commercial quantity of prohibited drugs, as part of a large scale operation.
Two further counts of supplying a prohibited drug were files on the morning of court and, according to the prosecutor, the importation charges would be filed within days.
The prosecutor submitted that our client was a strong flight risk - having access to the organisation’s resources and contacts and that the case against him was very serious and extremely strong
The 4 counts he was already facing each carried a maximum prison term of 15 years and, adding to concerns regarding flight was the allegation he was found to possess fraudulent identification – for which he was also charged.
During the bail hearing, the prosecution presented transcripts of audio recording which they alleged proved beyond doubt that our client had been involved in both the importation of commercial quantities of prohibited drugs and the supply of those drugs once in Australia.
It was further submitted that a lengthy, full-time prison sentence was inevitable.
Our defence team made submissions highlighting the existing deficiencies in the prosecution case, including questions surrounding both identification of those purportedly in the transcripts of audio recordings, their selective use which detracts from context and equivocal nature of the content itself.
We submitted it was improper to put forth potential charges when they had not been brought, and that the prosecution’s claims were vague and did not substantiate the submission that the case against our client was ‘extremely strong’.
We handed-up to the court cases which were factually to the one for which our client was actually before the court, rather than potential future charges, which showed that a full-time custodial sentence is not inevitable as submitted by the prosecution.
We prepared and handed-up carefully drafted bail conditions and submitted that those conditions, despite the absence of a monetary security, would allay any bail concerns held by the magistrate.
In the result, our client was released on bail conditionally upon reporting to a police station three times per week, residing at a particular address, not approaching an international point of departure and surrendering his passport.
Bail for Supplying a Large Commercial Quantity of Prohibited Drug, 2 Counts of Supply and Participating in a Criminal Group
Our client is a 22-year old IP professional living at Lismore Heights with his partner.
As a result of a police surveillance operation, our client was apprehended and charged with two counts of supplying a large commercial quantity of prohibited drugs as well as participating in a criminal group, with police alleging he was part of a criminal syndicate.
The alleged offences were “show cause” in nature, which means the onus is placed on the defence which bears the burden to prove to the court that having our client detained pending the finalisation of his case would be unjust in all of the circumstances.
During the bail hearing, the prosecution made a number of submissions in support of opposing bail including the seriousness of the charges, the strength of the prosecution case, the prospects of our client not attending court, the inevitability of a lengthy, full-time custodial sentence. They based these submissions on both video and audio recordings which, they submitted, established beyond reasonable doubt that our client had committed these serious offences.
Our team carefully scrutinised the allegations, took detailed instructions from our client, made contact with a well-respected drug rehabilitation clinic and submitted in court that there were a number of issues regarding the claimed strength of the prosecution case, including identification of our client and that there was a potentially available defence of duress.
We submitted that our client had a serious substance disorder and that, in the event the allegations were made out, there were very real issues regarding whether our client was forced to engage in alleged conduct.
We handed-up a speedily obtained letter from a rehabilitation program regarding his acceptance as well as documentation from his general practitioner regarding his addiction and, after presenting written proposed bail conditions and making lengthy verbal submissions, persuaded the presiding magistrate – who initially made remarks questioning why an application would be made for bail given the charges and materials - to grant bail conditional upon our client obtaining treatment.
It is important to bear in mind that the materials were obtained within a matter of hours, through our team coming together to ensure our client was put in the strongest possible position, despite the seriousness of the allegations and the material served upon us by the prosecution.
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  and the NSW Court of Criminal Appeal case of DPP v Mawad , 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.
Bail Granted for Large Commercial Drug Supply
Our 23 year old client has been granted conditional bail in Central Local Court after being charged with 'supplying a large commercial quantity of prohibited drug' and 'knowingly participate in criminal group'.
Police conducted a controlled operation into the alleged production and supply of methylamphetamine originating out of a clandestine laboratory in Ryde, NSW.
Police used surveillance devices and physical monitoring to track the movement of substances from that location to other parts of Sydney.
Our client was arrested together with four other young men who were allegedly in possession of 2.4 kilograms of methylamphetamine.
It is additionally alleged that our client is captured on surveillance footage handling the packages within which the drugs were found.
All five defendants then came before the Presiding Magistrate in Central Local Court.
They all faced an uphill battle when it came to bail because 'large commercial drug supply' is one of the offences captured by the new "show cause" provisions of the Bail Act - which means that it is very difficult to obtain bail in such cases.
However, our senior lawyers made extensive verbal submissions which ultimately convinced the Magistrate to grant bail to our client.
All of the other four other defendants were refused bail.
It is just another example of how superior legal representation can make all the difference when it comes to your liberty.
Client Avoids Prison Despite Breaching Suspended Sentence
In May 2013, our client pleaded guilty to Supplying a Commercial Quantity of Prohibited Drug and 3 counts of Possess Prohibited Drug.
He was given a two-year 'Suspended Sentence' and 3 x three-year 'Section 9 Good Behaviour Bonds' for those charges by the Presiding Judge in Downing Centre District Court. This was an excellent result given the seriousness of the charges.
However, in November 2014, he was found in possession of MDMA ('ecstacy') tablets and a quantity of cannabis, and charged with two counts of drug possession. Those charges caused him to breach his 'Suspended Sentence' and his 'Good Behaviour Bonds'.
In the lead-up to his court proceedings, our legal team gathered material supporting the assertion that our client had taken significant steps towards rehabilitation, but had found it difficult at times and relapsed.
In the result, the Presiding Judge was persuaded that there were good reasons to excuse the breach of Suspended Sentence. The breach was therefore excused and our client was given a fresh two-year section 9 good behaviour bond.
He therefore avoids prison and can continue in his efforts towards rehabilitation.
Drug Charges Thrown Out of Court
Our 26 year old client was charged with supplying 2.4 grams of cocaine, and a 'backup' charge of drug possession, after police located drugs and drug paraphernalia including electronic scales and resealable bags in a kitchen cupboard at his one-bedroom unit in Paddington.
Our client was the sole lessee of the unit, although his girlfriend also lived there and friends also attended for social gatherings.
The prosecution case failed because they could not prove beyond reasonable doubt that our client 'exclusively possessed' the drugs, to the exclusion of all others.
In drug cases, police must prove 'exclusive possession'- in other words, police must exclude any reasonable possibility that the drugs belonged to someone else.
In this case, our lawyers ensured that ample evidence came before the court that the drugs could have belonged to our client's partner or any one of a number of people who recently attended the unit.
The Magistrate in Downing Centre Local Court therefore found our client 'not guilty' and dismissed both of the charges.
- Your Rights at Music Festivals in New South Wales
- Defending Drug Charges: Putting the Prosecution to Proof and Raising Available Defences
- Your Guide To New South Wales LSD ('Acid') Laws
- Your Guide To New South Wales MDMA ('Ecstacy') Laws
- Your Guide to New South Wales Methamphetamine ("Ice") Laws
- Your Guide to New South Wales Heroin Laws
- Your Guide to New South Wales Cocaine Laws
- Your Guide to New South Wales Cannabis Laws
- What Amounts to a ‘Large Commercial Quantity’ of Prohibited Drugs in New South Wales?
- Senator Shoebridge Is Consulting the Community on Legalising Cannabis This Year