Bail and penalties

Bail

Bail is the right to be at liberty even though you have been arrested and charged with an offence. Bail can be conditional or unconditional. Bail conditions can include such things as living at a particular address or reporting regularly to police.

Police can grant bail. If the police refuse you bail (that is, keep you in custody) you must be brought before the court as soon as practicable. You can apply to the court for bail.

The consideration of bail has two parts.

Under the Bail Act 2013 (NSW), there are some situations where the accused person must ‘show cause’ why they should be released on bail. The Bail Act 2013sets out which offences are show cause offences. The relevant drug offences are supply, possession, cultivation, manufacture of commercial quantities of the drug.

The accused must also show cause if the offence charged is a serious indictable offence (that is, an offence that carries a maximum penalty of five years or more) and the offence is a breach of bail or parole.

The court must also determine whether there is an ‘unacceptable risk’ that the accused will fail to appear at court, or commit a serious offence, or threaten or interfere with victims or witnesses.
If there is an ‘unacceptable risk’ of any of these matters, the court must consider whether that risk can be mitigated by imposing bail conditions.

If the ‘unacceptable risk’ can be mitigated, then the person should be released on bail with the appropriate conditions. If the ‘unacceptable risk’ cannot be mitigated, then the person should not be released on bail.

For more information about the Bail Act 2013see A guide to bail published by Legal Aid NSW.

Penalties for drug offences

Broadly speaking, the key issues for the court in determining a criminal sentence are, probably obviously, the facts and circumstances of the offence and the person’s prior criminal history. The penalty will usually be discounted by 25% if there is an early guilty plea.

A plea of guilty for dealing or trafficking offences carries less weight than is usually the case for other offences, but still attracts a discount on sentence. Similarly, having no previous record carries less weight than usual in sentencing for trafficking offences.

About 100 people are imprisoned each year in NSW for drug possession (usually for relatively short terms). Almost another 700 people are imprisoned for supplying, cultivating or manufacturing drugs.

The tables below show the types of penalties imposed by Local and District Courts in 2014 (the most recent figures available) for the most common types of drug offences. Of course, every case is different, so these tables give a general idea only of the likely penalty for particular offences.

Local Court penalties

Penalty Possession and use Supply Cultivation/ Manufacture
Fine 4571 13 279
Prison 97 166 21
Suspended sentence 49 123 33
Intensive corrections order 1 374  
Home detention - 7 -
Community service 22 7019  
Bond 662 216 376
Conviction but no penalty 298 112  
No conviction recorded 1112 16 156
Total 6812 649 900

District Court penalties

Penalty Supply Cultivation/ Manufacture Importation
Fine - - -
Prison 319 74 102
Intensive corrections order 62 12 1
Suspended sentence 164 264  
Home detention 1 - -
Community service 8 1 -
Bond 38 7 -
Conviction but no penalty - 1 -
No conviction recorded - - -
Total 592 121 107

These figures do not include all drug offences prosecuted. They include only cases where the drug offence is the most serious charge (and not those cases where there are more serious charges laid). For example, in 2014 there were a total of 13,639 people charged with drug possession in NSW Local Courts. In more than half of those cases (8785) drug possession was the most serious (or perhaps the only) charge.

These figures are based on the annual criminal court statistics NSW published by the Bureau of Crime Statistics and Research (BOCSAR).

Conclusions

Most offences involve small quantities of drugs and are dealt with in the Local Courts where the jurisdictional limit is an $11,000 fine and two years' imprisonment, even if the maximum penalty set out in the Drug Misuse and Trafficking Act 1985 (NSW) is higher. The following conclusions are based on the 2014statistics:

  • for possession - by far the most common charge - two-thirds of defendants received a fine, the average around $400; about 16% of defendants had no conviction recorded under section 10 of the sentencing legislation
  • small scale supply convictions in the Local Court usually attract either prison sentences (on average, around 6 months) suspended prison sentences, or good behaviour bonds (the average length is about 18 months)
  • for larger supply cases - heard as indictable matters in the District Court - just over 50% of defendants are sentenced to prison, with the average term 25 months. Approximately a further 25% get a suspended prison sentence
  • for cannabis cultivation cases dealt with summarily in the Local Court, the most common penalties are good behaviour bonds (average 15 months) or fines (with the average about $530). For larger scale cases in the District Court, the most likely outcomes are prison (average 27 months) and suspended prison sentences
  • generally speaking, where the drug concerned is cannabis, the penalty tends to be a little lower than for other drugs, but there is no explicit law to that effect.