This Drug Misuse and Trafficking Act 1985 (NSW) (‘the Act’) is a piece of legislation which applies to offences allegedly committed in the state of New South Wales.
The Act prescribes maximum penalties in terms of prison time, as well as penalty units – which are also known as fines.
A penalty unit is equivalent to $110.
The court retains discretion to impose any one of a number of other penalties, including:
- A ‘non-conviction order’, such as a complete dismissal under section 10(1)(a) or a good behaviour bond without conviction by way of a conditional release order,
- A community correction order,
- An intensive correction order.
A table containing the weights categories that apply to each prohibited drug follows the list of penalties.
Summary, Table and Strictly Indictable Offences
The offences in the Act are broken up into: summary offences, Table 2 offences, Table 1 offences and strictly indictable offences.
Summary drug offences are generally the least serious.
‘Table’ offences are so called because they are listed in Tables 1 and 2 of schedule 1 of the Criminal Procedure Act 1986 (NSW), which is titled ‘’Indictable offences triable summarily’.
Table 2 offences are generally more serious that summary offences. For these, the prosecution can ‘elect’ (choose) to ‘commit’ (refer) the case to a higher court, which is usually the District Court.
Table 1 offences are generally more serious than Table 2 offences. For these, the prosecution or defence can elect to commit the case higher court.
The most serious state drug offences are strictly indictable offences which, as stated, must be finalised in a higher court.
Summary offences
Part 2, Division 1 lists the Act’s summary drug offences.
Section 21 of the Act prescribes a maximum penalty of 2 years in prison and/or 20 penalty units for each of the following offences, except an offence of possessing a Schedule 9 substance under section 18B(3) which carries a maximum of 12 months in prison and/or 20 penalty units:
Section of Act | Offence |
10 | Possession of prohibited drugs (or drug possession) |
11 | Possession of equipment for administration of prohibited drugs |
11A | Sale, supply and display of waterpipes ice pipes |
11B | Possession of tablet press or drug encapsulator |
11C | Possession of instruction for manufacture or production of prohibited drugs |
12 | Self-administration of prohibited drugs |
13 | Administration of prohibited drugs to others |
14 | Permitting another to administer prohibited drugs |
15 | Forging prescriptions |
16 | Obtaining prescription by false representation |
17 | Obtaining prohibited drug by false representation |
18 | Obtaining prohibit drugs from medical practitioners, nurses or midwives |
18A | Advertising or holding out that premises are available for use for unlawful administration of prohibited drugs |
18B | Manufacture, production, possession or supply of certain Schedule 9 substances |
19 | Aiding or abetting the commission of offence in NSW |
20 | Aiding or abetting the commission of offence outside NSW |
Table 2 offences – when finalised in the Local Court
Section 30 of the Act prescribes a maximum penalty of 2 years in prison and/or 50 penalty units for the offences in the table below where:
- The drug or plant is not more than the small quantity, and
- The case is finalised in the Local Court.
Section of Act | Offence |
23(1) | Cultivating, supplying or possessing a prohibited plant |
23A(1) | Cultivating a prohibited plant by enhanced indoor means and exposing a child to that process or substances stored for use in the process |
24(1) | Manufacturing or producing a prohibited drug |
24(1A) | Manufacturing or producing a prohibited drug and exposing a child to that process or substances stored for use in the process |
25(1) | Supplying a prohibited drug |
25(1A) | Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years |
25(2C) | Adult procuring a person under the age of 16 years to supply a prohibited drug (other than cannabis leaf) |
26 | Conspiring to commit an offence above |
27 | Aiding or abetting an offence above |
28 | Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW |
Table 1 offences – when finalised in the Local Court
Section 31 of the Act prescribes a maximum penalty of 2 years in prison and/or 100 penalty units for the offences in the table below where:
- The drug or plant is not more than the indictable quantity, and
- The case is finalised in the Local Court.
Section of Act | Offence |
23(1) | Cultivating, supplying or possessing a prohibited plant |
23A(1) | Cultivating a prohibited plant by enhanced indoor means and exposing a child to that process or substances stored for use in the process |
24(1) | Manufacturing or producing a prohibited drug |
24(1A) | Manufacturing or producing a prohibited drug and exposing a child to that process or substances stored for use in the process |
25(1) | Supplying a prohibited drug |
25(1A) | Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years |
25(2C) | Adult procuring a person under the age of 16 years to supply a prohibited drug (other than cannabis leaf) |
26 | Conspiring to commit an offence above |
27 | Aiding or abetting an offence above |
28 | Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW |
Offences finalised in a higher court
Section 32 of the Act prescribes a maximum penalty of 15 years in prison and/or 2000 penalty units, or 10 years and/or 2000 penalty units if the offence relates to cannabis, where the case finalised in a higher court such as the District Court:
Section of Act | Offence |
23(1) | Cultivating, supplying or possessing a prohibited plant |
24(1) | Manufacturing or producing a prohibited drug |
25(1) | Supplying a prohibited drug |
25(1A) | Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years |
26 | Conspiring to commit an offence above |
27 | Aiding or abetting an offence above |
28 | Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW |
Commercial quantities and cultivation for a commercial purpose
Offences relating to commercial quantities of prohibited drugs and plants are strictly indictable.
Section 33 of the Act prescribes these penalties:
Commercial quantity
For commercial quantities, the maximum penalty is 20 years and/or 3500 penalty units, or 15 years and/or 3500 penalty units if the offence relates to cannabis.
Large commercial quantity
For large commercial quantities, the maximum penalty is life in prison and/or 5000 penalty units, or 20 years and/or 5000 penalty units if the offence relates to cannabis.
The offences are:
Section of Act | Offence |
23(1A) | Cultivating not less than the small quantity but less than the commercial quantity of prohibited plants by enhanced indoor means for a commercial purpose |
23(2) | Cultivating, supplying or possessing a commercial quantity of prohibited plants |
24(2) | Manufacturing or producing a commercial quantity of prohibited drugs |
25(2) | Supplying a commercial quantity of prohibited drugs |
25(2A) | Adult supplying a commercial quantity of drugs to a person under the age of 16 years |
26 | Conspiring to commit an offence above |
27 | Aiding or abetting an offence above |
28 | Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW |
Supplying drugs to persons under the age of 16 years
Section 33AA of the Act applies to the following offences of supplying a prohibited drug to person under the age of 16 years:
Section of Act | Offence |
25(1A) | Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years |
25(2A) | Adult supplying, or knowingly taking part in the supply of, a commercial quantity of prohibited drug to a person under the age of 16 years |
26 | Conspiring to commit an offence above |
27 | Aiding or abetting an offence above |
28 | Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW |
The section prescribes the following maximum penalties:
Where the maximum penalty is 2 years in prison | 2 years and 6 months |
For commercial supply under section 25(2A) | 25 years in prison and/or 4200 penalty units |
In any other case | Maximum term of imprisonment and penalty units increase by one-fifth |
Possessing prohibited drug precursors – when finalised in a higher court
Section 33AB of the Act prescribes the following penalties for offences relating to drug precursors when the case is finalised in a higher court:
Section of Act | Offence | Penalty |
24A | Possessing drug precursor or drug manufacture apparatus with intent to manufacturing a prohibited drug | 10 years in prison and/or 2000 penalty units |
24B | Possessing a prescribed quantity of drug precursor | 5 years in prison and/or 1000 penalty units |
Manufacturing or producing prohibited drugs in the presence of or using children, or procuring children to supply them
Section 33AC of the Act prescribes the following penalties for offences which relate to the manufacture or production of prohibited drugs in the presence of children, or procuring children to supply drugs:
Section of Act | Offence | Penalty |
24(1A) | Manufacturing or producing a prohibited drug and exposing a child to that process or substances stored for use in the process | 18 years in prison and/or 2400 penalty units |
24(2A) | Manufacturing or producing a commercial quantity of a prohibited drug and exposing a child to that process or substances stored for use in the process | 25 years and/or 4200 penalty units, or life in prison and/or 6000 penalty units for large commercial quantities |
25(2C) | Adult procuring a person under the age of 16 years to supply a prohibited drug (other than cannabis leaf) | 18 years in prison and/or 2400 penalty units |
25(2D) | Adult procuring a person under the age of 16 years to supply a commercial quantity of prohibited drug (other than cannabis leaf) | 25 years and/or 4200 penalty units, or life in prison and/or 6000 penalty units for large commercial quantities |
The same maximum penalties apply to conspiring to commit the above offences (section 26), aiding or abetting the above offences (section 27) or conspiring, or aiding or abetting, and equivalent offence that occurs outside NSW.
Cultivating prohibited plants in the presence of children – when finalised in a higher court
Section 33AD of the Act prescribes the following penalties for offences which relate to the enhanced indoor cultivation of prohibited plants in the presence of children where the case is finalised in a higher court:
Section of Act | Offence | Penalty |
23A(1) | Cultivating a prohibited plant by enhanced indoor means and exposing a child to that process or substances stored for use in the process | 12 years in prison and/or 2400 penalty units |
23A(2) | Cultivating a commercial number of prohibited plants by enhanced indoor means and exposing a child to that process or substances stored for use in the process | 18 years in prison and/or 4200 penalty units |
23A(3) | Cultivating not less than the small quantity but less than the commercial quantity of prohibited plants for a commercial purpose and exposing a child to that process, or to substances stored for use in the process | 18 years in prison and/or 4200 penalty units, or 24 years in prison and/or 6000 penalty units for large commercial quantities |
The same maximum penalties apply to conspiring to commit the above offences (section 26), aiding or abetting the above offences (section 27) or conspiring, or aiding or abetting, and equivalent offence that occurs outside NSW.
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