SUPPLYING DRUGS
06-Sep-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 6/9/2010In this law article I will attempt to overview the law as it relates to supplying a prohibited drug including ‘deemed supply’ and ongoing supply – the relevant statutory provisions are set out below.
Supply:
The definition of ‘supply’ within s3 of the Drug Misuse and Trafficking Act 1985 (NSW) - (‘the Act’) is extremely broad and apart from including the terms ordinary meaning to “give or provide”:
"supply" includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
As can be seen from the extended definition of supply - supply includes apart from ‘sell’ to ‘distribute’ and almost any other involvement in the process. Hence, the offence of supply can be committed without the need for any money to change hands.
Deemed supply:
Deemed supply operates by virtue of the statute namely, s29 of the Act. Where the law deems that a person possesses the prohibited drug for supply given the quantity involved. The relevant deeming quantities for some of the more common prohibited drugs are as follows:
1,4-Butanediol and Gamma butyrolactone (precursors to GHB or Fantasy) – 30g
Cannabis leaf – 300g Cocaine – 3g Heroin – 3g 3,4-Methylenedioxyamphetamine (MDMA or Ecstasy) – 0.75g Ketamine – 7.5gOnce the crown has proven the accused is in possession of deeming quantity of a prohibited drug – the onus then falls to the accused to prove on the balance of probabilities that the person possessed the entirety of the prohibited drug for a purpose other than for supply eg. for personal use or holding for the actual owner: R v Carey (1990) 20 NSWLR 292.
As to possession (quoted from Trial Bench book):
Under the common law, possession means that the drugs are in the accused’s physical custody or at some place under his or her physical control. Unless the Crown relies on joint possession, it is necessary for the Crown to exclude as a reasonable possibility that some person other than the accused had possession of the drugs: R v Trotter [1999] NSWCCA 90 at [19]; R v Wan (2003) 140 A Crim R 513 at [14]; Dib & Dib v R (1991) 52 A Crim R 64 at 66–67. Where there is a possibility that a person other than the accused had possession of drugs in question (other than jointly with the accused), the Crown must prove that the accused had possession to the exclusion of other persons: Filippetti v R (1984) 13 A Crim R 335 at 338; R v Anderson (unrep, 15/12/83, NSWCCA) pp 4, 6; R v Duong [2003] NSWCCA 55 at [16]–[17].
Mere physical custody without any mental element however does not amount to possession. The concept of “possession” connotes knowledge of the thing possessed and the Crown must prove beyond reasonable doubt that the accused was aware of the existence of the drugs in his or her possession: He Kaw Teh v The Queen (1985) 157 CLR 523 per Gibbs CJ at 541–542. If an issue arises as to whether the accused was aware of the nature of the substance in his or her possession, the jury should be directed that the question is whether the accused knew of the existence of the drugs or was aware that there was a significant or real chance that they were drugs: Greatorex v R (1994) 74 A Crim R 496 at 498; R v Matthews & Williams [2004] NSWCCA 259 at [12]; R v Hudson (unrep, 24/5/95, NSWCCA); Popa v R (1991) 53 A Crim R 102 at 108. It need not be established that the accused knew that the substance was a particular drug, provided he or she knew it was a prohibited drug: Dunn v R (1986) 32 A Crim R 203 at 205, 209, 211.
In R v Carey (1990) 20 NSWLR 292 it was held that the mere transfer of physical control of drugs from a person who has them deposited with him or her back to the owner is not included in the definition of supply either under ss 3 or 29: at 294G, 297B; see also Liberti v R (1991) 55 A Crim R 120 at 122, 124; R v Frazer (2002) 128 A Crim R 89 at [12]–[15], [63]; R v Fong (unrep, 29/11/96, NSWCCA). The custodian may however be convicted of being in possession of a prohibited drug or as an aider and abetter to supply. This scenario is to be contrasted with the situation where a person is a “link in a chain of intended supply”: R v Blair (2005) 152 A Crim R 462 at [16].
Ongoing supply:
For this offence to be established the crown must prove that the accused supplied a prohibited drug on 3 or more occasions during any period of 30 consecutive days for financial or material reward: R v Jackson [2004] NSWCCA 110. Where the allegation relates to supplying on more than 3 occasions the jury must be in agreement as to the same three occasions that are said to constitute the offence: R v Seymour [2001] NSWCCA 272 at [11]–[12].
Penalties:
The penalties for supplying a prohibited drug depend obviously upon the quantities involved and also the type of drug however, generally the maximum penalties are as follows:
Summary matter – Table 2 (s30 of the Act): 50 penalty units ($5500) or 2 years imprisonment or both. Summary matter – Table 1 (s31 of the Act): 100 penalty units ($10,100) or 2 years imprisonment or both. Less than commercial quantity (s32 of the Act): 2000 penalty units ($220,000) or 15 years imprisonment or both. Commercial quantities – (s33 of the Act): 5000 penalty units or imprisonment for life or both.The law is also fairly clear where there is trafficking in prohibited drugs in any substantial degree in that, a custodial sentence will ordinarily be imposed. As per R v Clarke unreported, NSWCCA 15 March 1990:
This court has emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers and only in exceptional circumstances will a non-custodial order be appropriate. The statement is not restricted to those cases to which profit has been obtained. What the statement is principally directed to is the trafficking, the dissemination of drugs to others. The trafficking alone in any substantial degree would normally lead to a custodial sentence.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 25
25 Supply of prohibited drugs
(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.
(1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence.
(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantityprohibited drug applicable to the is guilty of an offence.
(2A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence.
(2B) Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly.
(2C) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence.
(2D) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
(2E) It is a defence to a prosecution for an offence under subsection (2C) or (2D) if the defendant establishes that the defendant had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person who was procured to supply, or take part in the supplyprohibited drug of, the was of or above the age of 16 years.
(3) Where, on the trial of a person for an offence under subsection (2) or (2D), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2C), respectively, and the person shall be liable to punishment accordingly.
(4) Nothing in this section renders unlawful the supply of a prohibited drug by:
(a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966 , or
(b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or
(c) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA,
or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom paragraph (a), (b) or (c) applies.
(5) Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10 (2) (d).
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 25A
25A Offence of supplying prohibited drugs on an ongoing basis
(1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.
Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both.
(2) Same prohibited drug not necessary A person is liable to be convicted of an offence under this section whether or not the same prohibited drug is supplied on each of the occasions relied on as evidence of commission of the offence.
(3) Jury must be satisfied as to same 3 occasions of supply If, on the trial of a person for an offence under this section, more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence.
(4) Alternative verdict-relevant supply offences If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly.
(5) Double jeopardy provisions A person who has been convicted of an offence under this section is not liable to be convicted:
(a) of a relevant supply offence, or
(b) of a separate offence under this section,
on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been convicted.
(6) A person who has been acquitted of an offence under this section is not liable to be convicted:
(a) except as provided by subsection (4)-of a relevant supply offence, or
(b) of a separate offence under this section,
on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been acquitted.
(7) A person who has been:
(a) convicted of a relevant supply offence, or
(b) acquitted of a relevant supply offence,
is not liable to be convicted for an offence under this section on the same, or substantially the same, facts as those relied on as evidence of commission of the relevant supply offence.
(8) Liability for relevant supply offences not affected by offence under this section Subject to subsections (5) and (6), this section does not:
(a) remove the liability of any person to be convicted of a relevant supply offence, or
(b) affect the punishment that may be imposed for any such offence.
(9) Exemption-lawful supply Nothing in this section renders unlawful the of a supplyprohibited drug by:
(a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966 , or
(b) a person acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study.
(10) Definitions In this section:
"cannabis" means cannabis leaf, cannabis oil, cannabis plant and cannabis resin.
"relevant supply offence" means any offence under this Act (other than under this section) relating to the supply of a prohibited drug.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 29
29 Traffickable quantity-possession taken to be for supply
A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:
(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or
(b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 30
30 Indictable offences-summary disposal of unless prosecution elects otherwise
(1) This section applies to the following offences:
(a) an offence under section 23 (1) or 23A (1),
(b) an offence under section 24 (1) or (1A),
(c) an offence under section 25 (1), (1A) or (2C),
(c1) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b) or (c),
(d) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b) or (c), and
(e) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 23A (1), 24 (1) or (1A) or 25 (1), (1A) or (2C),
where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the small quantity applicable to the prohibited plant or prohibited drug.
(2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence to which this section applies.
(3) If such an offence is dealt with summarily, the maximum penalty for the offence is a fine of 50 penalty units or imprisonment for 2 years, or both.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 31
31 Indictable offences-summary disposal of unless prosecution or accused elects otherwise
(1) This section applies to the following offences:
(a) an offence under section 23 (1) or 23A (1),
(b) an offence under section 24 (1) or (1A),
(c) an offence under section 25 (1), (1A) or (2C),
(c1) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b) or (c),
(d) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b) or (c), and
(e) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 23A (1), 24 (1) or (1A) or 25 (1), (1A) or (2C),
where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the indictable quantity applicable to the prohibited plant or prohibited drug.
(1A) This section also applies to an offence under section 24A or 24B.
(2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence to which this section applies.
(3) If such an offence is dealt with summarily, the maximum penalty for the offence is a fine of 100 penalty units or imprisonment for 2 years, or both.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 32
32 Penalty for offences dealt with on indictment not involving commercial quantities
(1) Except as provided by sections 30 and 31, the penalty for:
(a) an offence under section 23 (1),
(b) an offence under section 24 (1),
(c) an offence under section 25 (1) or (1A),
(d) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b) or (c),
(e) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b) or (c), or
(f) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 24 (1) or 25 (1) or (1A),
is:
(g) except as provided by paragraph (h), a fine of 2,000 penalty units or imprisonment for a term of 15 years, or both, or
(h) where the offence relates to cannabis plant or cannabis leaf, a fine of 2,000 penalty units or imprisonment for a term of 10 years, or both.
(2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence referred to in subsection (1) where the offence relates to cannabis plant or cannabis leaf. If such an offence is dealt with summarily, the maximum penalty for the offence is a fine of 100 penalty units or imprisonment for 2 years, or both.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 33
33 Penalties for offences involving commercial quantities or cultivation for a commercial purpose
(1) This section applies to the following offences:
(a) an offence under section 23 (1A) or (2), 24 (2) or 25 (2) or (2A),
(b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a),
(c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a),
(d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1A) or (2), 24 (2) or 25 (2) or (2A).
(2) The penalty for an offence is:
(a) except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, or
(b) where the offence relates to cannabis plant or cannabis leaf, a fine of 3,500 penalty units or imprisonment for 15 years, or both.
(3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is:
(a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or
(b) where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both.
(4) In this section:
"large commercial quantity", in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 33A
33A Provisions relating to life sentences
(1) A person sentenced to imprisonment for life for an offence under this Division is to serve that sentence for the term of the person’s natural life.
(2) Where a person is liable to imprisonment for life for an offence under this Division, the court may nevertheless pass a sentence of imprisonment of fixed duration.
(3) This section applies to offences under this Division committed before or after the commencement of this section. However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the offence were instituted against the convicted person before the commencement of this section.
(4) Nothing in this section affects the prerogative of mercy.
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