Social Supply

When a person provides a prohibited drug to another person and this does not involve any material or financial benefit, it is commonly referred to as ‘social supply’. Whilst this is not a specific offence itself, it is captured under the offence of supplying a prohibited drug contained in Section 25(1) of the Drug Misuse and Trafficking Act (NSW).

The following constitute examples of situations where the supply may be considered as social:

• Sharing a joint containing Cannabis with a group of friends
• Giving an ecstasy tablet to a colleague to take at a nightclub after work
• A group of people providing money to a designated person to purchase Cocaine on behalf of the group with the intention of giving the others their portion of the purchase.

Cases involving Social Supply

Sentencing for drug supply is governed by the Drug Misuse and Trafficking Act 1985 (NSW) and the general sentencing principles in the Crimes (Sentencing Procedure) Act 1999 (NSW). 

R v Parente [2017] NSWCCA 284

The 2017 Criminal Court of Appeal decision of R v Parente [2017] NSWCCA 284 was a turning point in sentencing offenders for drug trafficking offences. The five-bench decision overturned the “Clark Principle” in New South Wales which effectively constrained a Judge’s sentencing discretion by imposing a mandatory full time custodial sentence unless there are “exceptional circumstances”.

The matter involved the re-sentencing of Mr Parente who had been sentenced to 4 years imprisonment with a non-standard parole period of 2 years. Mr Parente was an admitted solicitor at the time he was apprehended by Police. Upon a search of his vehicle and a search of his home, Police located a number of prohibited drugs as well as drug paraphernalia such as digital scales, plastic syringes and small resealable bags. 

While the original sentence that was imposed did not change on appeal, the decision became authority that the Clarke Principle did not give adequate weight to an offender’s subjective features and was deemed to be incompatible with judicial sentencing discretion and as such, should no longer be applied in sentencing for drug supply cases. Since R v Peter Michael Clark, CCA (NSW) 15 March 1990, the enactment of the Crimes (Sentencing Procedure) Act 1999 (NSW) has introduced several sentencing options available to the Court such as an Intensive Corrections Order which is more onerous that its former, periodic detention.

R v Wilhelm [2010] NSWSC 378

The 2010 Supreme Court decision of R v Wilhelm remains the foundation case that defined the concept of social supply as being on the very lowest rung of criminality. It attracted widespread media attention following the death of a woman after she had ingested the prohibited drug GHB along with alcohol which was supplied to her by Mr Wilhelm. The decision established a clear distinction between sentencing a commercial drug operation and the social sharing of prohibited drugs.

On sentence, Howie J placed the non-commercial act of ‘social supply’ at the very lowest end of objective seriousness for drug supply offences under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The main difference is the moral culpability involved in that of sharing drugs with a friend for personal consumption with minimal planning, without profit as opposed to fueling the commercial drug trade.

In further addressing the moral culpability of Mr 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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