Some of the most common drug offences are for possession, use and supply of prohibited drugs. Each drug offence has specific legal 'elements' which the prosecution must prove beyond reasonable doubt. In this section, we examine the necessary legal elements for the offence of supply. These elements are established by the terms of the legislation, as interpreted by precedent court decisions.
Supply is very broadly defined (Drug Misuse and Trafficking Act,section 3) to include not only selling or giving away drugs but also simply agreeing to supply them.
Supply also includes 'deemed supply' - possessing certain quantities of drugs which are deemed to be for the purpose of supply. A person can be charged with supply if they tell police they intended to sell even a small quantity of drugs found in their possession, or if they deliver drugs to a friend.
They are also guilty of supply if they simply offer to supply a drug, even if they have no hope, or no intention, of fulfilling the offer.
What if it isn't really a drug?
If a person offers a substance to someone and says that it is a drug to persuade that person to buy or take it, they are guilty of supplying the drug whether the substance is actually the drug or not (section 40). For example, a person who offers to supply someone with heroin when all they have is icing sugar is considered guilty of supplying heroin. This is the case whether they have made a genuine mistake or are deliberately attempting to cheat the buyer. (For possession and use offences the court must be satisfied that the substance is in fact a prohibited drug.)
A person will be presumed to be supplying a drug if they are simply in possession of a particular quantity of the drug, known as the traffickable quantity. This amount varies from one drug to another, and in many cases is not especially large. If the police can prove that a person is in possession of a traffickable quantity of a drug, the person then has the onus of proving that the possession was not for the purpose of supply.
The case of the split stash
A man was charged with possession of cannabis in two separate premises. The combined weight exceeded the traffickable amount. He was convicted of deemed supply. His appeal was unsuccessful: the court said that because he had bought all the drugs at the same time, and they were the same texture and colour, there had been no miscarriage of justice (R v Wright, unreported CCA (NSW), 18 July 1986).
A traffickable quantity of a drug is an amount deemed in law to be in a person's possession for the purpose of supply.
Some traffickable quantities are:
- cannabis (leaf or heads) - 300 gm
- heroin - 3 gm
- amphetamines - 3 gm
- ecstasy - 3 gm or 15 tabs
- LSD - 0.003 gm or 15 tabs.
Purity does not matter - only weight. Under the Drug Misuse and Trafficking Act, one gram of a powder that is 10% heroin and 90% glucose is treated as one gram of pure heroin (section 4).
Anybody found in possession of a traffickable quantity is presumed to be a supplier unless they can prove otherwise - for example, that the drug was intended for personal use, or disposal (section 29).
The case of the sister's stash
A woman was found with 'deemed supply' quantities of cannabis and cocaine in her bedroom. She told police that her sister had given them to her to look after, and that if the sister had not picked them up the next day she would dispose of them. She was found guilty of possession, but not supply - because she could prove that she was not in possession of the drugs for the purposes of supply (R v Carey(1990) 20 NSWLR 292).
Police directions in public places
Police can legally give a 'reasonable direction' to a person in a public place who they believe on reasonable grounds is supplying, or soliciting supply of, or purchasing prohibited drugs. The direction must be 'reasonable in the circumstances for the purpose of stopping' the supply or purchase. It is an offence to fail to comply with the direction without reasonable excuse (Law Enforcement (Powers and Responsibilities) Act 2002(NSW), section 197).
Section 25A of the Drug Misuse and Trafficking Actcreates a special offence of supplying drugs on an ongoing basis. The offence involves the supply of a prohibited drug (except cannabis) on three separate occasions within a 30-day period. The acts of supply must be for some financial or other material reward. They do not all have to involve the same drug.
A charge of ongoing dealing could be laid where an undercover police officer buys drugs from the same street dealer on three different days. The police are not obliged to arrest the dealer immediately after the first sale.
The maximum penalty for ongoing dealing is a $385,000 fine and 20 years jail, regardless of the weight of the drug supplied or the value of the transactions. This is equivalent to the maximum penalty for the supply of a commercial quantity of drugs (250 grams of heroin or amphetamine, or 500 grams of ecstasy).
The NSW Court of Criminal Appeal has ruled that a sentence for this offence of four and half years (with a minimum term of two and half years) is not excessive, even if the amount of drug supplied was only small and the supplier was motivated by their own addiction rather than greed (R v Smiroldo  NSWCCA 120).
This offence is classed as strictly indictable, which means it must be finalised in the District Court rather than the Local Court. A person convicted of an offence under this section (and other indictable offences) is not eligible to be dealt with by the Drug Court.
Large scale supply
Higher penalties apply for charges involving the supply of larger amounts of drugs.
The Act divides trafficking offences into:
- indictable quantities
- commercial quantities
- large commercial quantities.
As with deemed supply, proof of possession of the relevant quantity is sufficient to establish that a person is guilty of that particular trafficking offence, unless the person can prove that the possession was for a reason other than supply (which is obviously more difficult the larger the quantity).
The table shows the scheduled quantities.
|Cannabis leaf/heads||1 kg||25 kg||100 kg|
|Heroin||5 gm||250 gm||1 kg|
|Methamphetamine (ice)||5 gm||250 gm||500 gm|
|Ecstasy||5 gm/ 25 tabs||0.5 kg||2 kg|
|LSD||0.005 gm/ 25 tabs||0.5 gm||2 gm|
The maximum penalties (prison and fine) for the larger supply categories are shown in the table below:
[Note: penalties accurate as at September 2015.]