Possess & Supply Prohibited Drugs

Possession of prohibited drugs is defined under Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW). A person is guilty of this offence if they have a prohibited drug in their physical custody or control and are aware of its existence.

Key Elements of the Offence:

1. Physical Custody or Control: The accused must have physical custody or control over the drug.
2. Knowledge: The accused must know that they possess the drug or be aware of the likelihood of its presence.
3. Prohibited Drug: The substance must be classified as a prohibited drug under the Drug Misuse and Trafficking Act 1985.

Penalties

Maximum Penalties:

The maximum penalty for possession of prohibited drugs is up to 2 years imprisonment and/or a fine of up to $2,200, depending on the severity and circumstances of the offence.

Factors Influencing Penalties:

• Quantity of drug: Larger quantities typically attract harsher penalties, and will often be charged as a Supply Prohibited Drug due to the weight or amount of the Drugs.
• Purpose of possession: Possession with the intent to supply can lead to more severe charges and penalties.
• Prior convictions: Previous drug-related offences can influence the severity of the penalty.

Legal Defences

Possible Defences to Possession Charges:

1. Lack of Knowledge: The accused did not know they had the drug in their possession. This can include situations where the drug was planted or they were unaware of its presence (e.g., in a shared house).
2. Lack of Control: The accused did not have the physical custody or control over the drug.
3. Medical or Therapeutic Use: The drug was in possession for medical or therapeutic use as authorised by law, such as prescribed medication.
4. Not A Drug: The Drug is not as alleged by Police.
5. Duress or Necessity: The accused was forced to possess the drug or did so out of necessity to avoid harm.

Legal Advice and Representation

If charged with possession of prohibited drugs, it is essential to seek legal advice from an experienced criminal lawyer. They can evaluate the specifics of your case, advise on possible defences, and provide representation in court. An expert lawyer can help mitigate the potential penalties and navigate the complexities of the legal system.

Additional Legal Information

Drug Court Program:

• For eligible individuals, the Drug Court of NSW offers a program aimed at rehabilitating drug-dependent offenders, providing an alternative to traditional sentencing.

Section 10 Dismissal:

• Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court may choose to dismiss the charge without recording a conviction if the offence is deemed minor and the accused has favourable personal circumstances.

Deemed supply is a critical concept under New South Wales drug laws that can significantly impact those charged with drug possession.

Deemed supply refers to a legal presumption that a person possesses prohibited drugs for the purpose of supply if the quantity of the drug exceeds a certain threshold, known as the traffickable quantity. This means that even without direct evidence of intent to supply, the law presumes supply based on the amount of the drug.

Key Elements of the Offence:

1. Possession: The accused must be in possession of a prohibited drug.
2. Traffickable Quantity: The quantity of the drug must exceed the traffickable threshold specified under the Drug Misuse and Trafficking Act 1985 (NSW).
3. Presumption of Supply: Under section 29 of the Act, possession of a traffickable quantity gives rise to a presumption that the drugs are for supply, unless rebutted by evidence to the contrary.

Penalties

Maximum Penalties:

• Deemed Supply: The penalties for deemed supply can be severe, with potential imprisonment terms extending up to 15 years, depending on the quantity of drugs and the circumstances of the case.
• Commercial and Large Commercial Quantities: If the quantity possessed is within the range of commercial or large commercial quantities, penalties can be much higher, including life imprisonment.

Traffickable Quantities:

• The specific quantity thresholds for various drugs are specified in Schedule 1 of the Drug Misuse and Trafficking Act 1985. For example:
  • Cannabis: 300 grams
  • Methamphetamine: 3 grams
  • Heroin: 3 grams

Legal Defences

Possible Defences to Deemed Supply Charges:

1. Lack of Knowledge: Demonstrating that the accused did not know they were in possession of the drug.
2. Lack of Control: The accused did not have control over the drugs.
3. Personal Use: Providing evidence that the drugs were intended for personal use, not supply. This can include testimony, drug paraphernalia, or other indications of personal consumption.
4. Duress or Necessity: The accused was forced to possess the drugs or did so to prevent immediate harm to themselves or others.
5. Medical or Therapeutic Use: In some cases, possession for medical purposes may be a valid defence.

Burden of Proof:

In deemed supply cases, the burden of proof shifts to the accused to demonstrate that the drugs were not intended for supply. This can be difficult depending on the circumstances of the offence, for example if you are caught with scales or re sealable bags that indicate an actual supply.

This can be a challenging legal hurdle, requiring robust evidence and legal representation.

Facing charges of supplying prohibited drugs is a grave matter with potentially severe penalties.

The offence of supplying prohibited drugs is comprehensively outlined in the Drug Misuse and Trafficking Act 1985 (NSW). Supply includes:

• Actual supply (selling or distributing drugs).
• Offering to supply.
• Keeping or having possession for the purpose of supply to another person.
• Agreeing to supply.

Key Elements of the Offence: To secure a conviction, the prosecution must establish that:

1. The accused supplied, or had the intention to supply, a substance.
2. The substance is a prohibited drug as defined under the Drug Misuse and Trafficking Act 1985.
3. The accused knew or believed, or was reckless as to whether, the substance was a prohibited drug.

Penalties

Maximum Penalties:

• Supply of Prohibited Drugs: The penalties vary based on the quantity and type of drug involved. For example, supplying a small quantity can attract up to 15 years imprisonment, while supplying a large commercial quantity can result in life imprisonment.
• Aggravated Supply: Supplying drugs to a minor or within a school zone can lead to higher penalties.

Other Factors Influencing Penalties:

• Quantity of Drugs: Larger quantities attract harsher penalties.
• Purpose of Supply: Supply for commercial purposes is penalised more severely.
• Repeat Offences: Prior convictions for drug-related offences can lead to increased severity in penalties.

Legal Defences

Possible Defences to Supply Charges:

1. Lack of Knowledge: The accused did not know or suspect that the substance was a prohibited drug.
2. Lack of Intent: The accused did not intend to supply the drugs; for example, they were unaware that drugs were stored in their vehicle.
3. Duress or Necessity: The accused was coerced into supplying drugs or did so to prevent imminent harm to themselves or others.
4. Error or Mistake: The substance possessed was not a prohibited drug, or there was a genuine mistake regarding its nature.

Legal Advice and Representation

Being charged with supplying prohibited drugs necessitates expert legal advice. An experienced criminal lawyer can:

• Evaluate the specifics of your case.
• Identify suitable defences and mitigation strategies.
• Represent you in court to achieve the best possible outcome.

The Drug Court of New South Wales (NSW) is an innovative and specialised jurisdiction focused on addressing the underlying issues of drug dependency in offenders. Established as an alternative to the traditional criminal justice system, the Drug Court integrates judicial oversight with health-based interventions to reduce recidivism and support long-term recovery.

MERIT is a voluntary program for adults in the Local Court who have problematic alcohol and/or other drug use.

MERIT provides access to a wide range of alcohol and other drug treatment services for 12 weeks.

All prohibited drugs that are listed under Schedule 3 of the Drugs Misuse and Trafficking Act. Although it is important to remember that act deals with what would typically be described as illicit drugs.