Drug offences and penalties are set out in the Drug Misuse and Trafficking Act 1985 (NSW). The Drug Misuse and Trafficking Act 1985 is the New South Wales statutory law on illicit drugs. The Act prescribes maximum penalties and available defences for all types of prohibited drugs and plants in NSW.
Drug laws in Australia carry serious penalties and consequences for drug offences, especially for offenders involved in the cultivation, manufacture, or supply of prohibited drugs. Drug crimes range from possession and usage of a prohibited drug to the manufacture, supply, or illegal importation of a drug. Penalties for drug crimes depend on several factors such as the offence charged, the type of drug, and the quantity of the drug involved.
There is no specific charge for drug trafficking. Drug trafficking is a criminal offence and a broad term for the manufacturing and selling of a significant quantity of prohibited drugs and it refers to various categories of charges. These charges are found in Part 2, Division 2 of the Drug Misuse and Trafficking Act 1985. Any charge referred to as trafficking will involve a substantial trafficable quantity of a prohibited drug or plant.
Drug trafficking in Australia can be seen as the intention to prepare or manufacture prohibited drugs with the purpose to traffic or distribute these drugs to people. A person can be charged with drug trafficking even if they are not in the possession of a prohibited drug. If they make an offer to sell or negotiate an agreement to traffic a prohibited drug it is also seen as drug trafficking.
Section 3 of the Drug Misuse and Trafficking Act 1985 (NSW) defines the offense of drug supply. Drug supply broadly includes:
A drug trafficker is someone who exchanges drugs for money, property, or services. It is also trafficking if a person passes drugs to friends or other people. It is common for drug trafficking to occur by organised crime syndicates. There are several offences associated with drug trafficking, such as:
Section 29 of the Drug Misuse and Trafficking Act 1985 states the deemed supply offence applies unless the accused proves they possessed the drug for another reason other than to supply it to another person or they gained possession of the drug with a legal prescription. The accused have to prove that the drugs were possessed for personal use.
The trafficable quantities that justify a deemed supply vary and this depends on the drug involved. For example, a trafficable quantity of Cocaine, Amphetamine and Heroin is 3 grams and a trafficable quantity of Cannabis is 300 grams.
Two people can be charged with deemed supply if the prosecution can establish shared possession of at least a trafficable quantity of a prohibited drug. The trafficable quantity will vary from drug to drug and reflects the weight category of the drug which may be different for different prohibited drugs.
The Drug Misuse and Trafficking Act 1985 bases penalties on the drug type and the amount present rather than the perceived seriousness of the drug. These quantities are based on the weight of the drug alone. The purity or the concentration of the substances of the drug is not taken into account. The severity of the penalties as stipulated in the Drug Misuse and Trafficking Act 1985 increases as the amount of drugs increases.
Schedule 1 classifies this increase according to the Act as small, trafficable, indicatable, commercial, and large commercial quantities. Whether the drug falls within a small, trafficable, indictable, commercial quantity category, or large commercial quantity category, will depend on the type and the quantity or weight of the prohibited drug.
Small Quantity of a Prohibited Drug
A small quantity of a prohibited drug is the smallest classification. A person will be charged with drug possession when the police find a small quantity of drugs on a person. There has to be specific evidence that the person had the drug to supply to another person. It is an offence according to Section 10 of the Drug Misuse and Trafficking Act to possess a prohibited drug.
The offence of possession of a prohibited drug carries a penalty of imprisonment for two years or a fine of $2,200 or both. The prosecution will have to prove beyond a reasonable doubt that the accused had possession of the prohibited drug and had knowledge of the drug.
A defence for reasonable doubt can be formulated if the prohibited drugs are found in a shared environment and if the prosecution cannot prove the sole possession of the drug by one person.
Trafficable Quantity of a Prohibited Drug
The Drug Misuse and Trafficking Act 1985 have a provision that deems possession of a drug to be for supply where the amount of the drug is equal to or more than the trafficable quantity. The accused has to prove that he or she had the drug for a purpose other than supply when the prosecution proved the possession of a trafficable amount beyond a reasonable doubt.
If a person has more than the trafficable amount of drugs in possession, the person will be charged with drug supply due to the deeming provisions, even if they had no intention of supplying the drugs to another person.
It is also an offence for a person to knowingly take part in the supply of a prohibited drug. If the accused is charged with deemed supply or actual supply of less than an indictable quantity of drugs the matter is dealt with in the Local Court. The maximum penalty is two years imprisonment or a fine of up to $11,000 or both.
Indictable Quantity of a Prohibited Drug
If the possession of a drug exceeds the indictable quantity as noted within the schedule under the Drug Misuse and Trafficking Act 1985, the matter becomes an indictable offence. This matter has to be finalised in the District Court. It is an offence for a person who knowingly takes part in the supply of a prohibited drug.
The maximum penalty for the supply of an indictable quantity of prohibited drugs in the District Court is 15 years imprisonment or a fine of up to $220,000 or both. The penalty is the same for deemed supply and actual supply.
Commercial Quantity of a Prohibited Drug
Supply of a commercial quantity or a large commercial quantity of prohibited drugs is an indictable offence. Indictable offences can only be dealt with in the District Court. Commercial drug supply is considered the most serious type of drug supply offences.
The prosecution has to prove beyond a reasonable doubt that a person supplied, or knowingly took part in the supply of a substance. The prosecution has to prove that the substance was a prohibited drug and that the accused was aware that the substance was a prohibited drug.
The maximum penalty for supplying a commercial quantity of prohibited drugs is twenty years in prison but this is reduced to fifteen years if the prohibited drug is cannabis. A fine of $385,000 can also be imposed. A sentence of life or twenty years in prison can be imposed for supplying a large commercial quantity of prohibited drugs.
The following table list some examples of the drug quantities and weight categories for drug supply in NSW:
Drug Quantity and Weight Categories for Drug Supply | |||||
Prohibited Plant/Drug | Small Quantity | Trafficable Quantity | Indictable Quantity | Commercial Quantity | Large Commercial Quantity |
Amphetamine | 1 g | 3 g | 5 g | 250.0 g | 1 kg |
Cannabis Leaf | 30 g | 300 g | 1000 g | 25.0 g | 100 g |
Cannabis Oil | 2 g | 5 g | 10 g | 500.0 g | 2 kg |
Cannabis Resin | 5 g | 30 g | 90 g | 2.5 Kg | 10 Kg |
Cannabis Plant Cultivated by Enhanced Indoor | 5 | – | 50 | 50 | 200 |
Cocaine | 1 g | 3 g | 5 g | 250.0 g | 1 Kg |
Heroin | 1 g | 3 g | 5 g | 250.0 g | 1 Kg |
Lysergic acid | 0.0008 g | 0.003 g | 0.005 g | 0.5 g | 2 g |
Methyl amphetamine | 1 g | 3 g | 5 g | 250 g | 1 Kg |
MDMA/Ecstasy | 0.25 g | 0.75 g | 1.25 g | 125 g | 500g |
The difference between a possession charge and a supply charge can be a very small amount, but it can have drastic consequences on the penalties imposed. For example, a small quantity of Ecstasy is 0.25 grams and the trafficable quantity is 0.75 grams.
Drug trafficking is the same offence as the offence of supply. The only difference is that there are larger quantities of a drug involved. Yet many people ask, what is the penalty for drug trafficking in Australia? The penalties vary and depend on whether the crime involved is an indictable quantity, a commercial quantity, or a large commercial quantity of the drug.
As discussed earlier a trafficking charge can be charged as deemed supply based on possession. The burden remains on the accused to prove that the prohibited drug was not possessed for trafficking.
The maximum penalty as set out in the Drug Misuse and Trafficking Act 1985 for supplying or trafficking prohibited drugs in NSW range from two years in jail and/ or a $5,500 fine to life imprisonment and/ or a $550,000 fine. The Judge will reserve the maximum penalty for the more serious drug offenders.
The maximum drug trafficking penalty in Australia depends on the quantity and weight of the drug as well as whether the drug is Cannabis or not. The supply of Cannabis is treated differently.
A drug charge is heard and dealt with in the Local or District Court. This depends on the quantity and type of the trafficked drugs as per the Criminal Procedure Act 1986 (NSW). The maximum drug penalties applicable to the different quantity ranges in Australia are summarised in the following table:
|
Quantity NSW |
Local Court |
District Court |
|
Small Quantity Drugs |
Two years imprisonment and/or $5,500 fine |
Fifteen years imprisonment or $220,000 fine |
|
More than Small Quantity but less than Indictable Quantity Drugs |
Two years imprisonment and/or $11,000 fine |
Fifteen years imprisonment and/or $220,000 fine |
|
Indictable Quantity Drugs |
Two years imprisonment and/or $11,000 fine |
Fifteen years imprisonment and/or $220,000 fine |
|
Commercial Quantity Drugs |
Case cannot be heard in Local Court |
20 years imprisonment and/or $385,000 fine |
|
Large Commercial Quantity Drugs |
Case cannot be heard in Local Court |
Life imprisonment and/or $550,000 fine |
Each drug supply case is different. The Judge will impose a sentence based on the features of the case and the level of seriousness of the offence. The sentence will be lighter if the offence is less serious but usually will result in a criminal record or full-time imprisonment. The Judge will consider the supply sentencing guidelines when he or she assesses the level of seriousness of the drug supply or drug trafficking offence.
The accused will receive a more lenient or lesser penalty if the quantity of the drugs is low. The accused will receive a harsher sentence if the quantity of the drugs is high.
The court will also take the role and level of participation of the offender into account for sentencing. The sentence will be more lenient if the accused had a smaller role with limited participation. The Judge will also consider the accused’s background before sentencing.
Drug trafficking offences and the penalties imposed for drug trafficking in Australia are serious and these cases need specialised legal advice. Lyons Law Group is a criminal law firm with vast experience as drug offence lawyers in Sydney. If you, a family member, or a person you know has been charged with a drug trafficking matter obtain professional assistance by contacting one of our criminal defence lawyers.
