Section 25(1) of the Drug Misuse and Trafficking Act (NSW) provides that “a person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.” Matters brought before a New South Wales court under this section are almost invariably related to commercial ventures, that is, selling prohibited substances for profit, usually in significant amounts. Whilst the phenomenon of what is now referred to as “social supply” is long-established, the term is one that has been coined and recognised only relatively recently.
Social Supply Definition
The social supply of a prohibited drug occurs when one person provides access to a prohibited drug to another person where there is no consideration as to profit. An example of social supply could be as simple as:-
- One person sharing a joint with a group of friends;
- Giving a pill to a friend so as to enjoy a night out together.
- A group providing money to one person who purchases drugs on behalf of the group with the intention of giving the others their portion of the purchase.
R v Wilhelm  NSWSC 378
The 2010 Supreme Court decision of R v Wilhelm was highly publicised due to the fact that it resulted in the death of a woman. The facts were that Wilhelm and the victim met onboard a cruise ship, where they went to his cabin in order to have consensual sex. During their time, she witnessed him using the drug ‘fantasy’ or GHB. He offered her some – and the consumption of the drug, along with her previous alcohol consumption, restricted her breathing. She died as a result.
At sentence, Howie J made a number of noteworthy remarks addressing the seriousness of the charge, comparing “social supply” to the more typical charge under section 25 of the Drug Misuse and Trafficking Act which he characterised as a “supply for profit”. Noting the amount of the drug Wilhelm possessed, and his intentions, he found that there was no suggestion that Wilhelm intended the prohibited drug to be involved in a commercial venture.
Importantly, he took into account that though the consequences of this supply were undoubtedly serious, the situation was one that involved two consenting adults. He concluded that “on the scale of offences of supply it must be on the very lowest rung.”
In further addressing the moral culpability of Wilhelm he stated that “If one strips away all of the consequences of this activity it seems to be an indicator of the very lowest criminality of the offence of supply that could be imagined.”
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