Drug Offences in New South Wales (NSW)

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The law for drug offences prohibit the following actions with prohibited drugs;

• Use,
• Possession,
• Supply,
• Cultivating,
• Manufacturing,
• Importing or other actions.

The law that details these actions, and stipulates penalties for offenders is the Drug Misuse and Trafficking Act 1985.

It also extensively covers all Drug Driving offences, especially for prohibited substances. Some of these prohibited drugs include; Cannabis (Marijuana), heroin, ecstasy, amphetamines, LSD, Cocaine, Methadone, other common street drugs, including their cliché names and others.

What are the various behaviours that constitute a Drug Offence?

The court can convict you for various Drug offences as long as it concludes from evidence that you participated with the prohibited drugs.

Some of these acts are;

Drug possession

Without a medical or legal prescription, it is an offence to be found "possessing" an amount of a prohibited drug. It also includes drugs like Cannabis and Methadone, irrespective of public opinions of the many benefits.

However, it is not an offence if you possess a small quantity of the prohibited drug inside a licensed medically supervised learning centre.

1. Proving Possession;

The prosecutor must prove to the court that the offender was in "possession" of the drug. Under the Act, there are three elements important for this proof;

• Knowledge: That you knew or should know (inferred) the drug in your possession.
• Custody: Whether the drug was in your “near possession” or if you are in order of disposition. It means you control and influence the position and transport of the drugs
• Control: that you could use, transport, or intended to use them.

2. What are the penalties for Drug Possession?

The crime of drug possession is a summary offence when it is for personal use. And it was dealt with in a Local Court or a Children's court.

Under Section 21 of the Act, the court can impose penalties up to;

• 20 penalty units ($2,200) in fines and/or,
• 2 years imprisonment term.

However, the penalties can be less severe, depending on the; drugs, quantity or prior records or nature surrounding the crime. Other possible penalties can be;

• Home detention,
• Intensive correction order,
• Suspended sentences,
• Community service,
• Good Behaviour Bonds,
• Extra penalties based.

However, if you are caught with large amounts of the drugs, the court will conclude that you possess the drug for the sake of supply or trafficking. The court will then order higher penalties it deems appropriate.

Drug Use offences

It is an offence under any circumstance to administer or attempt to either yourself or another. It remains illegal even when the person grants consent to administer the drugs (injections). It also doesn't matter if the drug was prescribed or not prescribed, as long as you violate the terms and directions of use.

Therefore, it is an offence to administer drugs such as; Codeine, Dexamphetamine, Valium, buprenorphine, or methadone without a physician nearby or following the dosage prescribed.

1. In Licensed Medical Facilities

It is not an offence to possess small amounts of these drugs (prescribed) within a licensed medically supervised injecting centre. However, you may be charged outside the facility.

2. What are the penalties for Drug Use offences?

If you are charged before the court for drug usage, the court will impose penalties up to;

• 20 penalty units ($2200) in fines and/or,
• 2 years imprisonment term

Drug usage involves any of these actions; swallowing, snorting, injecting, smoking or otherwise using a prohibited drug.

It is an offence to obtain or attempt to obtain prescription drugs by lying or making false representations, including by forging or altering a prescription.

Maximum penalty: $2200 and/or imprisonment for 2 years.

Supply of a prohibited Drug

If you are caught attempting to or supplying a prohibited drug without lawful authority, you will be charged and convicted appropriately. The penalties for supplying a prohibited drug differs, depending on the quantity and other factors the court deems relevant.

The offence of Supplying a prohibited drug includes;

• offering or agreeing to supply, even if no deal ever takes place;
• being knowingly concerned in supply, for example, introducing someone to a dealer;
• supplying a legal substance that you claim is a prohibited drug, for example, selling aspirin and passing it off as heroin;
• pooling money and splitting up purchased drugs between the group of buyers; or
• having drugs in your possession for supply.

The Police may even change your offence of Drug possession to supply if you are caught with large quantities of the drug(s). It may also include elements like possessing;

• Deal bags,
• Get capsules,
• Large amounts of cash,

If you are caught with more than the “trafficable quantity” of a drug, you may be charged with “deemed supply”. It is up to you to prove that the drugs in your possession are not for supply; they were for your use, or you were simply going to return them to their owner.

If you are caught dealing with an undercover police officer, you cannot rely on a defence of “entrapment” unless the police have induced you to commit an offence that you wouldn't otherwise commit.

Most drug supply charges are dealt with in a Local Court (Summary offences), especially if they involve less than the indictable quantity.

However, the prosecution can choose to charge the matter in a District court (involving a judge and jury). Drug supply offences for indictable quantities are heard in a District Court or commercial quantities at the Supreme Court. Such matters will involve a judge and a jury.

1. Supply offences involving a prohibited drug other than cannabis

• Supply of a large commercial quantity of a prohibited drug other than cannabis attracts $550,000 in fines and/or imprisonment for life.
• Supply of a commercial quantity of a prohibited drug other than cannabis attracts $385,000 in fines and/or imprisonment for 20 years.
• Supplying an indictable quantity of a prohibited drug other than cannabis attracts $220,000 and/or imprisonment for 15 years.
• Supplying more than the small quantity but less than the indictable quantity of a prohibited drug other than cannabis attracts penalties up to $11,000 and/or imprisonment for 2 years.

2. Supply offences involving cannabis;

• Large commercial quantities of cannabis attract penalties up to $550,000 and/or imprisonment for 20 years.
• Commercial quantities of cannabis attract penalties up to $385,000 and/or imprisonment for 15 years.
• An indictable quantity of cannabis attracts penalties up to $220,000 and/or imprisonment for 10 years.
• Small quantities of a prohibited drug other than cannabis attract penalties up to $5500 and/or imprisonment for 2 years.

The offence of Manufacture and Cultivation of Prohibited Drugs

It is an offence to manufacture or take part in the manufacture of a prohibited drug without legal authority. It involves extracting, refining the drug from another substance or plant.

Cultivation of prohibited plants is also a serious offence. Cultivation acts include:

• Sowing or scattering the seed produced by the prohibited plant;
• Planting;
• Growing;
• Tending;
• Nurturing; or
• Harvesting the prohibited plant.

Other actions like watering the plant or fertilising it will likely be considered cultivation.

1. Penalties for Manufacture and Cultivation of prohibited Drugs

The maximum penalties for cultivation or manufacture are similar to those for drug supply offences. It also depends on the type and quantity of drug involved, the offender's role, which court is dealing with the case and whether children were exposed to the cultivation or manufacturing process.

If you are caught in possession of precursors, the police must establish your intention to use the precursor to manufacture prohibited drugs.

Manufacture or cultivation offences involving a prohibited drug other than cannabis

• A large commercial quantity of a prohibited drug or plant for sale attracts $550,000 fines, and/or imprisonment for life.
• The commercial quantity of a prohibited drug or plant attracts $385,000 and/or imprisonment for 20 years.
• Indictable quantity of a prohibited drug or plant attracts $220,000 and/or imprisonment for 15 years.

2. Manufacture or cultivation offences involving cannabis

• Large commercial quantity of a prohibited drug or plant for sale attracts up to $550,000 fines and/or 20 years.
• Commercial quantity of cannabis attracts $385,000 fines and/or 15 years.
• Indictable quantity of cannabis attracts $220,000 fines and/or imprisonment for 10 years.
• Illegal possession of instructions for the manufacture or cultivation of cannabis attracts $2200 and/or imprisonment for 2 years.

Drug Offences involving Children

Sections 23A, 33AC and 33AD of the Act outline that Selling, supplying, trafficking, manufacturing or cultivating prohibited drugs around children is a much more serious crime and results in much higher penalties. The child is never blamed or charged for being involved with drugs or controlled plants.

Supplying a controlled drug to a child under 16 years old is an offence with penalties of up to 25 years imprisonment, depending on the circumstances.

Cannabis Caution Scheme

The Police officer may issue a warning instead of a Court summons or Penalty Notice for certain “lesser” Drug offences. Other details regarding the program are governed under the Cannabis Cautioning Scheme (CCS).

An offender can receive a warning where;

• You are found possessing no more than 15 grams of Cannabis; and
• You have no prior record involving drugs, violence or sexual assault and
• You have not received the same caution for drug possession on more than 2 occasions.

Do drug offences show up on a Nationally Coordinated Criminal History Check?

Where the offence results in conviction from an Australian court of law, the offence will show up on an individual's Nationally Coordinated Criminal History Check.

Applicants can obtain their Nationally Coordinated Criminal History Check online from the ANCC website.

Wrapping Up

The NSW laws view the penalty Notice scheme and the Cannabis cautioning scheme as discretionary alternatives to a conviction or sentencing. However, these are not available for aggravated offences or serious drug offences.

The NSW courts also deal with other Drug offences under the related laws

• DUI offences
• Murder or other aggravated offences from Drug intoxication/abuse

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