Criminal law
Drug charges in NSW
Almost everything about a drug charge is decided by weight. The same substance in the same pocket can be a fine that never reaches a court, a possession charge in the Local Court, or a supply charge in the District Court with a standard non-parole period attached. Which of those you face depends on the number on the analyst’s certificate, on whether the search that found it was lawful, and on what was said afterwards.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales and in the District Court, and we can attend a police station.
On this page
Charges and penalties Quantity thresholds Possession Staying out of court Deemed supply Supply Cultivation Was the search lawful? Defences MERIT and Drug Court Sentencing options Common questions
The drug charges brought in NSW
These are the offences people are actually charged with, in rough order of seriousness. The gap between the rungs is enormous, and which one you are on is frequently arguable.
| Offence | What it involves | Maximum penalty |
|---|---|---|
| Possess prohibited drug | Custody or control of a prohibited drug, knowing it is there | 2 years and a $2,200 fine, in the Local Court |
| Self-administer, or possess equipment for administering | Using a prohibited drug, or having a pipe, syringe or similar item | 2 years and a $2,200 fine, in the Local Court |
| Supply, or deemed supply, up to the indictable quantity | Selling, giving, offering, agreeing to supply, or holding drugs for supply. Deemed supply is possession of at least the traffickable quantity | 2 years and an $11,000 fine in the Local Court. 15 years and a $220,000 fine if it goes to the District Court, or 10 years for cannabis |
| Supply above the indictable quantity | The same conduct, more of it | 15 years and a $220,000 fine, District Court only, or 10 years for cannabis |
| Supply a commercial quantity | At or above the commercial threshold for that drug | 20 years and a $385,000 fine, with a standard non-parole period of 10 years. 15 years for cannabis |
| Supply a large commercial quantity | At or above the large commercial threshold | Life imprisonment and a $550,000 fine, with a standard non-parole period of 15 years. 20 years for cannabis |
| Ongoing supply | Supplying a drug other than cannabis on three or more separate occasions in any 30 days, for financial or material reward | 20 years and a $385,000 fine, District Court only |
| Supply to a person under 16 | Supply by an adult to a child | Higher than the equivalent adult supply offence at every quantity |
| Cultivate prohibited plants | Growing, supplying or possessing cannabis plants or other prohibited plants | 10 years for cannabis below a commercial quantity, rising to 20 years for a large commercial quantity |
| Manufacture or produce a prohibited drug | Making a drug, and separately, possessing precursors or the apparatus to make one | 15 years below a commercial quantity, rising to life |
Fines are expressed in penalty units, currently $110 each. The dollar figures above reflect that rate.
How quantity decides the charge
Every prohibited drug has five thresholds set by legislation. Where the weight falls decides which offence can be charged, which court hears it, and what the maximum is. These are the drugs that come up most often.
| Quantity | Cannabis leaf | Cocaine | Heroin | MDMA | Methylamphetamine |
|---|---|---|---|---|---|
| Small | 30g | 1g | 1g | 0.25g | 1g |
| Traffickable | 300g | 3g | 3g | 0.75g | 3g |
| Indictable | 1kg | 5g | 5g | 1.25g | 5g |
| Commercial | 25kg | 250g | 250g | 125g | 250g |
| Large commercial | 100kg | 1kg | 1kg | 500g | 1kg |
What each threshold does
- Small. At or below this amount, a supply offence can be finalised in the Local Court with a ceiling of two years and a $5,500 fine. It is also the ceiling for police diversion
- Traffickable. The trigger for deemed supply. At or above this weight, the law treats possession as possession for supply and it becomes your job to show otherwise
- Indictable. At or below this amount a supply charge can stay in the Local Court, where the maximum is two years whatever the offence carries. Above it, the matter must go to the District Court
- Commercial and large commercial. Strictly indictable, with standard non-parole periods and a presumption against bail that you have to displace
The weight is the whole substance, not the drug in it. Quantity is calculated on the total weight of the mixture, so a substance that is mostly cutting agent counts at its full weight. This is how someone holding a small amount of actual drug ends up above a threshold. Separate rules apply to drugs supplied in tablet or capsule form. Where the certificate of analysis is close to a threshold, the weight, the sampling and the continuity of the exhibits are all worth examining rather than accepting.
Possession
Possession is the most commonly charged drug offence in New South Wales. It carries a maximum of two years imprisonment and a $2,200 fine, and it is dealt with in the Local Court.
What has to be proved
- Custody or control. The drug was in your physical custody, or in a place over which you had control
- Exclusive control. Control has to be exclusive. Where drugs are found in a shared house, a shared car or a common area, presence is not enough
- Knowledge. You knew the drug was there, or were aware of the likelihood that it was
- The substance. It was in fact a prohibited drug, proved by analysis, with continuity established from seizure to testing
Prohibited drugs are listed in Schedule 1 of the legislation. The list is long and it is not limited to what people think of as street drugs. Prescription medication held by someone other than the person it was prescribed for, and anabolic steroids, are both regularly charged.
A first possession charge involving a small amount, dealt with properly, frequently ends without a conviction being recorded. That outcome is not automatic and it is much harder to obtain once a plea has been entered without preparation.
Not every drug matter goes to court
Two schemes allow police to deal with low level possession without charging anyone. Both are discretionary, and police can decline to use either and issue a court attendance notice instead.
Early Drug Diversion Initiative
Since February 2024, police can issue an adult a $400 criminal infringement notice for possessing a small quantity of a drug other than cannabis, instead of charging them. Each notice comes with a free telephone session with a nominated health professional, and completing it means the fine is treated as paid. A notice resolved this way does not produce a conviction and does not appear on your criminal record.
Cannabis Cautioning Scheme
Where up to 30 grams of cannabis is found, police can issue a formal caution rather than charge. A person can receive up to two cautions. The caution requires an admission, and it comes with information about a drug and alcohol telephone service.
The limits of the diversion scheme
- It applies to adults only, and to a small quantity or less
- Only one type of drug can be involved, cannabis aside
- It is not available to anyone suspected of supply, manufacture or importation, or suspected of drug driving
- It is not available to anyone with a prior conviction for a serious drug offence, or who has already received two diversions
- Police retain the discretion to charge in every case
A $400 notice can be taken to court, and sometimes should not be. Anyone issued a criminal infringement notice can elect to have the matter heard by a court instead. That is occasionally the right course, where the possession is genuinely disputed or the search was unlawful. It also exposes you to a conviction that the notice would have avoided, so it is a decision worth taking advice on rather than making at the counter. More on criminal infringement notices.
Deemed supply
This is the provision that turns a possession matter into a supply matter, and it is where most people charged with supply in New South Wales actually find themselves. It applies where the amount in your possession is at or above the traffickable quantity for that drug. Three grams of cocaine is enough. So is 0.75 grams of MDMA.
Once that threshold is reached, the law treats the drugs as being in your possession for supply. The prosecution does not have to prove that you sold anything, offered anything, or intended to. The penalty is the same as for actual supply.
The onus moves to you. Deemed supply is one of the few places in criminal law where the accused carries a burden. To defeat it you have to satisfy the court, on the balance of probabilities, that the drugs were in your possession for some purpose other than supply. That is a lower standard than the prosecution’s, but it still has to be met with evidence rather than assertion.
What actually rebuts it
- A demonstrated pattern of personal use at a level consistent with the quantity, supported by medical or treatment records
- Evidence of dependency and tolerance, properly documented
- Financial records showing no unexplained income
- The absence of the usual indicators, meaning no scales, no resealable bags, no tick list, no second phone, no cash in denominations
- An account given consistently and early, rather than one constructed after the brief of evidence arrives
Where the deeming provision is successfully rebutted, what remains is a possession charge, which is a different matter in a different court with a two year ceiling instead of fifteen.
One trap worth knowing about. Handing drugs back to the person who owns them is still supply in New South Wales. Minding drugs for a friend, or returning them, is not the answer people expect it to be, and saying so at the roadside has converted a great many possession matters into supply matters.
Supply
Supply is defined far more broadly than selling. It includes selling, distributing, agreeing to supply, offering to supply, keeping or having drugs in possession for supply, sending, delivering, receiving for supply, and knowingly taking part in any step of the process. Money does not have to change hands and drugs do not have to be handed over.
In practice that means splitting a purchase with friends, buying for a group, or passing something along at a party can all be charged as supply. Providing premises or arranging finance for someone else’s supply is enough to be knowingly taking part in it.
Which court hears it, and why that is the first question
A supply charge involving no more than the indictable quantity can be finalised in the Local Court unless the prosecution elects to take it to the District Court. If it stays, the most a magistrate can impose is two years, whatever the offence carries on indictment. Above the indictable quantity, the matter must go to the District Court, where the full maximum applies. Cannabis leaf is treated differently again, and a cannabis supply below the commercial quantity can still be dealt with summarily.
Whether a matter stays in the Local Court is therefore one of the most consequential things that happens in it, and it is worth having someone dealing with the prosecutor about that early rather than after committal.
Ongoing supply
Supplying a drug other than cannabis on three or more separate occasions within any 30 consecutive days, for financial or material reward, is a separate and much more serious offence. It carries 20 years, it must be dealt with in the District Court, quantity is irrelevant to the charge, and the courts have made clear that a full-time custodial sentence follows absent exceptional circumstances. The drug does not have to be the same on each occasion. Three text messages arranging three small transactions in a month is the shape of most of these prosecutions.
Commercial and large commercial quantities
These are strictly indictable, carry standard non-parole periods of 10 and 15 years, and are show cause offences for bail, meaning you have to satisfy the court that your detention is not justified before the ordinary bail considerations are even reached. Preparation for a bail application in these matters starts immediately, not at the first mention.
Cultivation, manufacture and drug premises
Cultivating prohibited plants
Cultivating, supplying or possessing prohibited plants is a separate offence. For cannabis, the thresholds are counted in plants rather than grams, and the method of growing changes the numbers.
| Quantity | Grown outdoors | Grown by enhanced indoor means |
|---|---|---|
| Small | 5 plants | 5 plants |
| Indictable | 50 plants | 50 plants |
| Commercial | 250 plants | 50 plants |
| Large commercial | 1,000 plants | 200 plants |
Enhanced indoor means covers growing inside a building using artificial light or heat, or nutrient enriched water, or suspending the roots and spraying them. It matters a great deal, because it cuts the commercial threshold from 250 plants to 50. Between five and 50 plants grown that way, the prosecution also has to prove a commercial purpose, meaning an intention that the product be sold. At 50 or more it does not.
Maximum penalties run from 10 years for cannabis below a commercial quantity, to 15 years at commercial, to 20 years at large commercial. For plants other than cannabis the maximums are higher again, reaching life imprisonment. Exposing a child under 16 to enhanced indoor cultivation is a separate aggravated offence.
Manufacture and precursors
Manufacturing or producing a prohibited drug carries 15 years below a commercial quantity and rises from there. There are also standalone offences of possessing precursor chemicals, and of possessing apparatus capable of being used to manufacture, which are charged where nothing has actually been made. Both turn on what the items were for, which is often the whole argument.
Drug premises
Separate legislation makes it an offence to own, occupy or be found on premises used for the supply or manufacture of prohibited drugs. Being found on drug premises is charged against people who were visiting, and the offence has defences available to someone who was there for a lawful purpose or did not know what the premises were used for.
Was the search lawful?
This is the most under-examined issue in drug prosecutions and the one that most often ends them. Police cannot search you on a hunch. Without a warrant, they need a suspicion on reasonable grounds that you are carrying something, and that suspicion has to rest on identifiable facts rather than on where you were or what you look like.
Drug detection dogs
General drug detection using dogs is authorised in certain places without any individual suspicion, including some public transport, licensed premises and public events. Detection is not a search. An indication by a dog is one piece of information that may contribute to reasonable suspicion, and dog indications are wrong far more often than they are right. An indication alone has repeatedly been found insufficient to justify what followed.
Strip searches
A strip search away from a police station requires the seriousness and urgency of the circumstances to make it necessary. The Supreme Court held in 2025 that a strip search conducted on the basis of a drug dog indication, or a suspicion of drug possession alone, does not meet that test and is unlawful. Parts of that decision are on appeal, but the principle has already changed how these matters are run.
Strip searches also carry mandatory safeguards. The search must be the least invasive practicable, conducted in a private area by an officer of the same sex, without touching and without any search of body cavities. A person under 18 is entitled to a parent or support person present. Breach of any of these is a basis for challenging what was found.
Consent cures an unlawful search. Where police lack reasonable suspicion, agreeing to be searched supplies the authority they were missing. A request framed as “do you mind if I have a look” is a request, not a direction, and you are entitled to decline it. Equally, there is no obligation to answer questions about where drugs came from, who they belong to or what they were for. Admissions made at the roadside are how the great majority of deemed supply prosecutions are built.
Where a search was unlawful, the evidence obtained through it may be excluded. In a drug prosecution the evidence obtained through the search is usually the entire case, and exclusion ends the matter.
Defences and issues
The search was unlawful
No reasonable suspicion, a strip search that should not have happened, or safeguards ignored. If the evidence goes, so does the prosecution.
Not in your possession
Drugs in a shared house, a shared car or a common area. Control has to be exclusive, and proximity is not possession.
No knowledge
You did not know the drug was there. This covers items left in a bag or vehicle, shared living arrangements, and substances that turn out to be something other than what you were told.
Not a prohibited drug
The analysis, the weight, the sampling method and the continuity of the exhibits are all capable of being tested. Where the weight sits near a threshold, this is worth doing.
Personal use
The answer to deemed supply, and the one that requires the most preparation, because the burden is yours to discharge.
Lawful authority
The drug was prescribed to you, or you held it under a licence or authority. This arises more often than people expect with prescription medication and with medicinal cannabis.
Duress
You acted under a threat of serious harm. It arises in supply matters more often than in possession matters.
The wrong charge
Not a defence, but frequently the most valuable argument available. Moving a matter from supply to possession, or keeping it in the Local Court, changes the outcome more than anything else on this list.
If your matter involves driving after using a prohibited drug rather than possessing one, that is a different offence with different consequences. More on driving with an illicit substance.
Treatment programs the courts run
Where drug dependency sits behind the offending, there are two programs that deal with the cause rather than only the charge. Both are worth raising early, because eligibility is affected by how the matter has already been run.
MERIT
The Magistrates Early Referral Into Treatment program is voluntary, runs for around 12 weeks, and is available in the Local Court to adults with problematic alcohol or other drug use. It does not require a guilty plea and it does not require the charge to be drug related. Completing it is taken into account at sentence. More on MERIT.
The Drug Court
A specialist court for drug dependent offenders who would otherwise receive a full-time custodial sentence. It involves a guilty plea, an intensive supervised program, and judicial oversight for its duration. Eligibility is narrow and geographically limited, and a successful program can result in a sentence being substantially reduced or not served. More on the Drug Court.
Outside those programs, engagement with treatment started early and properly documented carries real weight at sentence. Dependency is not by itself a strong mitigating factor. Evidence that you identified the problem and did something about it before the court told you to is a different matter entirely.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. The penalty is often heavier as a result. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
Common questions
Police found a small amount on me. Will I end up with a criminal record?
Not necessarily. If police deal with it by diversion, whether a $400 notice or a cannabis caution, no conviction results at all. If you are charged, a first possession matter involving a small amount and prepared properly frequently ends without a conviction being recorded. What makes the difference is what is put before the magistrate, and that is decided well before the day of court.
It was all for personal use, but the amount was over the traffickable quantity. What happens now?
You will be charged with supply, and it becomes your job to satisfy the court that the drugs were not for supply. That is done on the balance of probabilities, which is a lower standard than the prosecution’s, but it takes evidence. Records of use, treatment history, financial records and the absence of the usual supply indicators all matter. Start gathering that material now rather than later.
I was only holding them for someone else. Does that help?
Less than people expect, and it can make things worse. Handing drugs back to their owner is still supply in New South Wales, so this explanation does not defeat a supply charge and it concedes possession. It is one of the most damaging things said at the roadside, and it is the reason not to explain yourself before getting advice.
A dog indicated on me and I was strip searched. Was that lawful?
Quite possibly not. A strip search away from a police station requires circumstances serious and urgent enough to make it necessary, and the Supreme Court held in 2025 that a dog indication or a suspicion of drug possession alone does not satisfy that. There are also mandatory safeguards about privacy, the sex of the officer, touching and body cavities. If any of that was ignored, the evidence found may be excluded, and in a drug matter that usually ends the prosecution. Tell us exactly what happened, in order.
Do I have to tell police where I got them?
No. You have to provide your name and address when lawfully required to. You do not have to answer questions about where the drugs came from, who they belong to, what they were for or how long you have had them. Those answers are what turns possession into supply.
Will I go to gaol for a supply charge?
It depends almost entirely on quantity and on which court hears the matter. Supply at the lower end, dealt with in the Local Court, regularly resolves without full-time custody. Ongoing supply and commercial quantity supply are different, and custody is the expected outcome there. Nobody should approach a supply charge assuming either extreme, and the first thing worth doing is working out which court it will be heard in.
Can a drug charge be kept in the Local Court?
Possession always is. Supply can be, where the quantity is no more than the indictable quantity, unless the prosecution elects to take it to the District Court. Cannabis supply below a commercial quantity can also stay. The difference is a two year ceiling instead of fifteen, which is why this is one of the first things we deal with.
I was given a $400 fine instead of a court date. Should I just pay it?
Usually you should not pay it. The notice comes with a free telephone health session, and completing that means the fine is treated as paid, so you keep the $400 as well as avoiding a conviction. Book the appointment before the due date on the notice. If you dispute the possession altogether, or the search was unlawful, you can elect to have the matter heard in court instead, but that carries the risk of a conviction and is worth advice first.
What should I bring to a first appointment?
The court attendance notice or infringement notice, the police fact sheet, any bail conditions, and the certificate of analysis if you have it. If treatment, counselling or a doctor is involved, bring whatever you have. If you have none of it, come anyway.
Speak to us before you say anything else
Drug matters are won on the lawfulness of the search, the weight on the certificate and the charge that gets laid, and all three are decided in the first few weeks. Get advice before you plead to anything.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across New South Wales and in the District Court. Courts we appear in.