The maximum penalties that apply to drug offences in New South Wales depend on:
- The type of drug,
- The weight of the drug, and
- Whether the case is finalised in the Local Court, or a higher court such as the District Court.
The main pieces of legislation which contain drug offences that apply in New South Wales are:
- The Drug Misuse and Trafficking Act (NSW) which applies in New South Wales only, and
- The Criminal Code Act 1995 (Cth) which applies across Australia.
Admixture versus pure weight
It is important to bear in mind that under the Drug Misuse and Trafficking Act, the relevant weight of the substance is the ‘admixture’; in other words, the total weight of the substance that contains the prohibited drug or plant.
So, for example, if one kilogram of ‘cut’ cocaine contains 200 grams of cocaine and 800 grams of fillers, the relevant weight of cocaine for the purposes of the Act is one kilogram.
Similarly, if 30 grams of cut cannabis contains 25 grams of cannabis and 5 grams of tobacco or another legal substances, the relevant weight is 30 grams of cannabis.
This is different to the Criminal Code Act, where the pure weight of the substance is relevant.
It is also important to be aware that below are the maximum penalties, and that – where a person pleads guilty or is found guilty – the court will take a wide range of factors into account when determining the penalty that applies in the specific set of circumstances.
Burden of proof and legal defences
It is vital to be aware that the prosecution must prove each ‘element’ (ie ingredient) of the specific offence beyond a reasonable doubt before a person can be found guilty of a drug offence, and that there are a range of legal defences that may be available to a person who is accused of an offence.
Where a legal defence (such as duress, necessity, mental illness or self-defence) is raised on the evidence, it is the prosecution that must then disprove that defence beyond a reasonable doubt.
All of that said, here are the penalties that apply to drug offences under the Drug Misuse and Trafficking Act and Criminal Code Act:
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