Deemed Drug Supply
In New South Wales, when a person is found in possession of a prohibited drug, they can be charged with drug supply if the amount is greater than a “traffickable” quantity. This is what is known as “deemed drug supply” because it is deemed the person was in possession of that amount for the purpose of supply.
Section 29 of the Drug Misuse and Trafficking Act 1985 states the deemed drug supply offence applies unless the person proves:
- they possessed the drug for a reason other than to supply it; or
- the gained possession of the drug on an in accordance with a prescription from a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinarian.
Usually police are required to prove beyond a reasonable doubt that the accused person was in possession of that quantity for the purpose of supply. However, this charge requires the accused person to rebut the presumption. That is, the accused person must prove on the balance or probabilities that they were in possession of the drug for a purpose other than supply. The police need to prove only that the accused was in possession of a prohibited drug and the amount was more than the traffickable amount of that drug.
The Act contains an extensive list of “prohibited drugs”. The most common prohibited drugs are cannabis, cocaine, ecstasy, amphetamines and heroin.
“Possession” means the prohibited drug was in the person’s physical custody, or in their control, and the person knew they had custody or control over it.
“Supply” includes sell, distribute, agree to supply, offer to supply, keep or possess for supply; send forward, deliver or receive for supply; or authorise, direct, cause, suffer, or permit, or attempt any of those acts.
What is considered a “traffickable” quantity depends on the drug. For instance, a traffickable quantity of cannabis is 300g, while for cocaine it is 3g, ecstasy 0.75g, methylamphetamine 3g, and heroin 3g.
Rebutting the presumption of deemed drug supply
The most common arguments to rebut the presumption are that the drugs were for personal use or were being held temporarily for someone else.
Rebutting the presumption will be difficult if police can provide evidence of drug supply such as scales, resealable plastic bags, multiple mobile phones, amounts of cash or weapons.
Whether deemed supply can be proven or not, the accused person will be charged under the regular offence of drug supply under section 25(1) of the Act, as a person who supplies, or who knowingly takes part in the supply of a prohibited drug.
The seriousness of the offence is the major factor in determining the penalty, which could range from avoiding a conviction to imprisonment. Determining seriousness involves considering factors such as:
- the type and quantity of the drug;
- the level of sophistication and planning in the offence;
- any trafficking;
- any profit made;
- reasons for offending;
- whether a syndicate was involved and the role of the offender in it.
Deemed supply is an indictable offence, which means it can be moved from a local court to a higher court such as a district court. If the offence is heard in the local court, the maximum penalty is a 2-year prison sentence, a $5500 fine or both. If the offence is heard in a higher court, generally the maximum penalty is 15 years imprisonment.
Section 10 dismissal
Under the Crimes (Sentencing Procedure) Act 1999, a court has discretion not to convict a person but instead make an order that the person is found guilty and dismiss the matter without further penalty. The court will consider factors such as the person’s age and character, and the nature and circumstances of the offence. It might consider making a section 10 dismissal order when the there is a very small amount of drugs involved and the offender has no criminal history and shows remorse.
Conditional Release Order (CRO)
The offender can be released on such an order which has standard conditions that they must not commit any offence and must appear in court if ordered. A CRO can be made for a period of up to 2 years.
A fine can be imposed as an additional or alternative penalty to imprisonment, up to 1000 penalty units ($110,000).
Community Correction Order (CCO)
This order is imposed in place of a prison sentence, and can be considered a good behaviour bond with conditions. In addition to standard conditions, there may be other conditions such as a curfew, non-association orders, or compulsory participation in a drug rehabilitation program. A CCO can be made for a period of up to 3 years.
Intensive Correction Order (ICO)
This order is imposed in place of a prison sentence, only when a court has considered a prison sentence of 2 years or less is appropriate. An ICO has more harsh conditions than a CRO or CCO, such as home detention, electronic monitoring and community service. An ICO can be made for a period of up to 3 years.
For advice or representation in any legal matter, please contact Armstrong Legal.