Drug supply is one of the most heavily prosecuted criminal offences in NSW. The penalties are severe, the police and prosecution have significant resources behind these cases, and even a first offence can result in a lengthy prison sentence depending on the quantity and type of substance involved.
If you have been charged with supplying a prohibited drug in NSW, the decisions you make in the first few days after being charged can significantly affect the outcome of your case. Understanding the charge, the potential penalties, and the defences available is critical.
What Counts as Drug Supply in NSW?
Under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW), supplying a prohibited drug means more than just selling it. The legal definition of supply is extremely broad and includes selling, distributing, giving, sending, delivering, or agreeing to supply a prohibited drug.
You do not need to have physically handed drugs to another person to be charged with supply. Simply agreeing to supply, or having drugs in your possession in a quantity that exceeds the deemed supply threshold, can be enough for police to charge you.
This is a point that catches many people off guard. If you are found with a quantity of drugs above the deemed supply amount, the law presumes you had the drugs for the purpose of supply, and the burden shifts to you to prove otherwise. For example, the deemed supply threshold for cannabis is 300 grams, for MDMA it is 0.75 grams, and for cocaine it is 3 grams. These are not large amounts, and many people charged with supply had no intention of selling drugs to anyone.
Types of Drug Supply Charges
The severity of the charge depends on the type of drug and the quantity involved. NSW law categorises drug supply offences into several tiers.
Small Quantity Supply
This involves quantities below the indictable threshold. These matters can sometimes be dealt with in the Local Court, where the maximum penalty is generally 2 years imprisonment. However, the prosecution can elect to have the matter dealt with on indictment in the District Court, where penalties are significantly higher.
Supply of a Prohibited Drug (Standard)
This covers quantities above the small quantity but below the commercial quantity. The maximum penalty is 15 years imprisonment and/or a fine of $220,000. These matters are dealt with in the District Court.
Commercial Quantity Supply
Where the quantity involved reaches the commercial threshold, the maximum penalty increases to 20 years imprisonment and/or a fine of $385,000. The commercial quantity thresholds vary by drug type.
Large Commercial Quantity Supply
This is the most serious drug supply charge. Where the quantity reaches the large commercial threshold, the maximum penalty is life imprisonment. These cases attract intense prosecution attention and are treated with the utmost seriousness by the courts.
What Are the Penalties for Drug Supply?
The penalties for drug supply in NSW depend on the quantity, the type of substance, the accused’s criminal history, and the circumstances of the offence.
For a standard supply charge, the maximum penalty is 15 years imprisonment. For commercial quantity, it rises to 20 years. For large commercial quantity, it is life imprisonment. Even at the lower end, courts in NSW take drug supply seriously, and custodial sentences are common even for first offenders where significant quantities are involved.
The court will consider aggravating factors such as whether the supply involved minors, whether the accused played an organising role, the degree of planning involved, and any prior drug related convictions. Mitigating factors can include cooperation with authorities, early guilty pleas, good character, rehabilitation efforts, and personal circumstances such as mental health or addiction.
Sentencing in drug supply cases is governed by the Crimes (Sentencing Procedure) Act 1999, and for certain quantities, standard non parole periods apply, which set a benchmark sentence the court must consider.
Possible Defences to Drug Supply Charges
Drug supply charges can be defended. The right defence depends entirely on the facts of your case, but there are several common approaches.
No Knowledge of the Drugs
If you did not know the drugs were in your possession, or did not know the substance was a prohibited drug, this can be a complete defence. The prosecution must prove that you knowingly had possession of a prohibited substance.
No Intent to Supply
Where the charge is based on deemed supply (possession of a quantity above the threshold), you can argue that the drugs were for personal use only and that you had no intention of supplying them to anyone. This is an area where experienced legal representation makes a significant difference, as the evidence required to rebut the deemed supply presumption needs to be carefully prepared.
Duress
If you were forced or threatened into supplying drugs by another person, duress may provide a defence. You would need to show that you acted under a genuine threat of serious harm and had no reasonable opportunity to escape the situation.
Unlawful Search or Seizure
If the drugs were obtained through an unlawful search, an illegal phone tap, or a breach of your rights during the investigation, the evidence may be excluded at trial. Police in NSW must follow strict procedures when conducting searches and intercepting communications, and any breach of those procedures can undermine the prosecution’s case.
Lack of Possession
The prosecution must prove that you had physical custody or control of the drugs. If the drugs were found in a shared space, a vehicle with multiple occupants, or a location you did not control, there may be a viable argument that you were not in possession.
What Happens in Court for Drug Supply Charges
Less serious drug supply matters can be dealt with in the Local Court, but most supply charges proceed to the District Court of NSW on indictment. Large commercial supply matters may be heard in the Supreme Court.
The process begins with arrest and charge, followed by a bail hearing. Drug supply charges often involve contested bail applications, particularly where large quantities are involved or where the accused is considered a flight risk. Having a criminal lawyer present at the bail hearing can make the difference between being remanded in custody and being released on bail.
If the matter proceeds to trial, the prosecution must prove every element of the offence beyond reasonable doubt. This includes proving that the substance was a prohibited drug, that you supplied or intended to supply it, and that you did so knowingly. Expert evidence, phone intercepts, surveillance footage, and forensic analysis of the substance are common forms of evidence in these cases.
Deemed Supply: Why Quantity Matters
One of the most important concepts in NSW drug law is deemed supply. If you are found in possession of a quantity of drugs that meets or exceeds the deemed supply threshold, the law presumes that you possessed the drugs for the purpose of supply.
This reverses the usual burden of proof. Instead of the prosecution having to prove you intended to supply, you must prove on the balance of probabilities that the drugs were not for supply. This is a difficult but not impossible task, and the strength of the evidence you present is critical.
Factors that can support a personal use argument include the absence of scales, deal bags, or other supply paraphernalia, no evidence of contact with buyers, financial records showing no unexplained income, and evidence of personal drug use such as a history of addiction.
Why Early Legal Advice Is Essential
Drug supply charges carry severe penalties and the investigation and court process can be complex. Early legal advice from an experienced criminal defence lawyer allows your team to assess the strength of the prosecution’s evidence, identify any procedural errors in the investigation, prepare your defence strategy, negotiate with the prosecution where appropriate, and ensure your rights are protected throughout the process.
If you have been arrested or are under investigation for drug supply, do not make any admissions or statements to police before speaking with a lawyer. What you say during a police interview can and will be used against you at trial.
FAQs
What is the penalty for drug supply in NSW?
The maximum penalty depends on the quantity. For standard supply, it is 15 years imprisonment. For commercial quantity, 20 years. For large commercial quantity, the maximum is life imprisonment. Actual sentences vary based on the circumstances of each case.
Can I be charged with supply if the drugs were for personal use?
Yes. If the quantity exceeds the deemed supply threshold, the law presumes the drugs were for supply. You would need to prove on the balance of probabilities that the drugs were for personal use only.
What is deemed supply?
Deemed supply is a legal presumption that arises when you are found in possession of a quantity of drugs at or above a specified threshold. The law assumes the drugs were intended for supply, and the burden shifts to you to prove otherwise.
Can drug supply charges be dropped?
Yes. Charges can be withdrawn if the evidence is insufficient, if procedural errors occurred during the investigation, or through negotiations between your lawyer and the prosecution. An experienced criminal lawyer will assess every possible avenue.
This article is for general information only and does not constitute legal advice. If you have been charged with a criminal offence, contact Davis & Associates for advice specific to your situation.
Call Davis & Associates
If you have been charged with drug supply or any drug related offence in NSW, you need experienced legal representation immediately. Early advice can make a critical difference to the outcome of your case.
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