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DRUG OFFENCES

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According to the National Drug Strategy Household Survey 2019 by the Australian Government, 3.4 million people reported using illicit drugs(illegal drugs) in the previous 12 months. The most popular illicit drugs were:

  • Cannabis
  • Ecstasy/MDMA
  • Misuse of prescription medication (prescribed medications are dangerous drugs as they can be extremely addictive. For example, morphine, endone, Xanax, etc)
  • Cocaine 

Drug offences are serious offences that can have a significant impact on a persons life. Drug offences are a criminal law offence and may result in drug charges. A conviction for drug offences and drug-related offences may result in a criminal record. 

Drug use can also have a significant impact on persons physical and mental health. In 2016, the Personal Safety Survey conducted by the Australian Institute of Health and Welfare found that respondents who reported the use of illicit drugs in the past 12 months were three times more likely to report experiencing family or domestic violence over that time.

In Australia, drug offences are dealt with by both state and commonwealth law.  NSW Police (state police), Australian Federal Police and Border Force are involved in the investigation and prosecution of drug offences. The prosecution has to prove their case beyond reasonable doubt.

State drug offences

In NSW, drug offences are dealt with under the Drug Misuse and Trafficking Act 1985 (NSW). There are two categories of offences, summary and indictable.

Summary offences

Summary drug offences are offences that are dealt with by the Local Court and are usually prosecuted by Police Prosecutors. The following offences are considered summary offences under the Drug Misuse and Trafficking Act 1985 (NSW):

  • Possession of a prohibited drug (for example cannabis)
  • Self-Administration of prohibited drugs
  • Administration of prohibited drugs to another person

Possession of a prohibited drug

A person who has a prohibited drug in his or her possession is guilty of an offence. Defences to this drug offence include for example, someone who has a prescription from a medical professional, veterinarian, etc. 

 

The maximum penalty for this offence is imprisonment for 2 years, a fine of $2,200 or both.

 

Possession of equipment for administration of prohibited drugs (drug paraphernalia). For example, tablet press, water press, ice pipes, drug encapsulator, bong etc. A person who has in his or possession any item of equipment for use in the administration of a prohibited drug is guilty of an offence. 

 

The maximum penalty for this offence is imprisonment for 2 years, a fine of $2,200 or both.

Possession of a prohibited drug

A person who administers or attempts to administer a prohibited drug to another person is guilty of an offence. A defence to this drug offence would be where the drug has been prescribed by a medical practitioner and assistance is required to administer it. For example, assisting someone with medication such as a parent administering ADHD medication to a child. Amphetamine is found in some medications such as ADHD medication.

 

The maximum penalty for this offence is imprisonment for 2 years, a fine of $2,200 or both.

Cannabis Cautioning Scheme for Cannabis Possession

The Cannabis Cautioning Scheme is a drug diversion program aimed at encouraging cannabis users to seek help rather than sending them through the criminal justice system. NSW Police have discretion in relation to cannabis possession where it is deemed for personal use. This is usually determined by the quantity of the drug found on the person in possession of the drug. The Caution is formal and will appear on your criminal record, however, it is not a conviction. The police still have discretion to charge you even after a caution is issued.

Eligibility for a Cannabis Caution:

  • Over the age of 18
  • Cannabis is for personal use and not supply 
  • You are NOT eligible if you have prior drug offences, sex offence or violence offences such as domestic violence

Cautions for Young Offenders

Young offenders (under 18) who have committed minor drug offences such as possession (for personal use), may be eligible for a caution under the Young Offenders Act 1997 (NSW). It should be noted that a caution requires a young offender to admit to the commission of the offence before a caution can be granted. If you do not admit guilt, the police cannot grant you the caution and will proceed to charging you. If you are charged, you will need to go to court. These offences are by the Children’s Court.

The court has the discretion to issue a caution, however, it requires an admission of guilt. If a caution is issued by the court, the matter is dismissed and not further action is taken.

A caution is a formal and will appear on a criminal record.

You should seek legal advice before speaking with police and entering into a caution.

Options in the Local Court for Drug Offences

In NSW, defendants are entitled to a 25% reduction in their sentence when they plead guilty at the earliest possible moment. Pleading guilty at the earliest possible moment may also entitle a defendant to access to non-prison based diversion programs and sentencing options available to the Local Court.

MERIT

Before convicting someone of a drug offence, the court may grant bail where appropriate. Offenders with a history of drug use may be eligible for the MERIT Program (Magistrate’s Early Referral into Treatment). It is a diversion program that aims to assist offenders to improve their overall health and address the underlying reasons for their drug use before proceeding with their legal matter.

Eligibility: 

  • Over the age of 18
  • Eligible for bail
  • Be suspected of using drugs or have a known history of drug use
  • Voluntarily agree to participate in the program.

When sentencing a defendant for a drug offence, the Local Court has a number of options available to avoid sending them to prison. Prison is seen as a last resort for summary offences.

Section 10

A section 10 is the best possible outcome in the event the court finds you guilty of a drug offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender.

  • Section 10 (1) (a)- dismissal with no conviction recorded
  • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years 
  • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

Before granting a section 10, the court will consider:

  • Your criminal record. 
  • Your character, antecedents, age, heath and mental condition, drug use
  • The trivial nature of the offence
  • Extenuating circumstances that lead to the offence being committed 
  • Any other matter the court considers relevant

Intensive Corrections Order

Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

Additional conditions that may be imposed by the court include:

  • home detention
  • electronic monitoring
  • curfew
  • community service (up to 750 hours)
  • participation in rehabilitation or treatment programs, for example drug treatment/counselling
  • no drugs or alcohol
  • refrain from certain relationships/associations, for example drug dealer, etc.
  • ban from certain locations

Community Corrections Order

Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

Conditional Release Order

A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

Drug Court

NSW has a Drug Court for eligible participants. The Drug Court operates at the same level as the Local Court. The Court is a specialist diversion program for people with a history of drug use who have committed certain crimes.

Eligibility:

  • Over the age of 18
  • High likelihood of full-time imprisonment if convicted
  • Be dependent on illicit drugs
  • Willing to participate in the program
  • Meet the location criteria and be referred from appropriate Local Court or District Court 
  • Charges cannot be for a violent or sexual offence such as domestic violence 
  • No mental health conditions that would impact on ability to complete the program

Indictable Offences

It is us up to the discretion of the prosecution whether an indictable matter is to be heard summarily or on indictment. These matters are usually prosecuted by the Director of Public Prosecutions (DPP) and can be complex, appearing before the District or Supreme Court. It is therefore essential that you contact our law firm for legal advice.

According to the Judicial Commission of NSW, the most common drug offences dealt with on indictment are:

  • cultivation of prohibited plants (for example cannabis)
  • the manufacture of prohibited drugs (including possession of precursors)
  • supply of prohibited drugs
  • supply of prohibited drugs on an ongoing basis 

Cultivation of prohibited plants – 

A person who – 

  • cultivates, or knowingly takes part in the cultivation of a prohibited plant,
  • supplies or knowingly takes part in the supply of, a particular plant, or
  • has a prohibited plant in his or her possession

is guilty of an offence.

If dealt with on indictment, the maximum penalty for this offence is 10 years imprisonment and or a fine of $220,000 or both for cannabis plant/leaf and less than a commercial quantity.

For a cultivation offence not cannabis plant/leaf, the maximum penalty is imprisonment for 15 years and a fine of $220,000 or both.

A person who – 

  • cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants,
  • supplies, or knowingly takes part in the supply of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, or
  • has a number of prohibited plants in his or her possession which is not less than the commercial quantity applicable to prohibited plants, 

is guilty of an offence.

The maximum penalty for this offence is 15 years imprisonment, a fine of $385,000 or both for offences relating to cannabis leaf/plant. For other offences, the maximum penalty is 20 years imprisonment, a fine of $ 385,000 or both.

An example of the above is the commercial quantity of cannabis leaf which is 25 kg. It should also be noted that the stage of cultivation is not a mitigating factor, but the horticulture skills provided by an offender are taken into consideration (see Judicial Commission of NSW Sentencing Bench Book). 

A person who – 

  • cultivates by enhanced indoor means or knowingly takes part in the cultivation by indoor means of, a number of prohibited plants which is – 
  • not less than the small quantity applicable to the prohibited plants, and
  • cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose –

is guilty of an offence.

An example of enhanced indoor cultivation would be a hydroponic set up.

Manufacture and production of prohibited drugs

A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug is guilty of an offence.

If dealt with on indictment, the maximum penalty for this offence is imprisonment for 15 years or a fine of $220,000 or both for less than a commercial quantity. 

A person who – 

  • manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug, and 
  • exposes a child to that manufacturing or production process, or to substances being used for use in that manufacturing or production process

is guilty of an offence.

A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. 

The maximum penalty for this offence is imprisonment for 20 years or a fine of $385,000 or both. If more than the commercial quantity is involved, the maximum penalty is life imprisonment or a fine of $550,000 or both.

This offence also carries a standard non-parole period of 10 years for less than the large commercial quantity of a prohibited drug (not cannabis leaf) and 15 years for not less than the large commercial quantity of prohibited drug (not cannabis leaf).

A person who –

  • manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug an,
  • exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,

is guilty of an offence.

Where the above offences of manufacture are committed in the presence of children, the court is likely to impose a heavier sentence. 

Possession of illicit drug precursors and certain apparatus for manufacture or production of prohibited drugs. 

A person who has possession of – 

  • a precursor, or 
  • a drug manufacture apparatus,

intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug, is guilty of an offence. 

The maximum penalty for this offence is 10 years imprisonment, a fine of $220,000 or both.

Apparatus for the production of prohibited drugs includes but is not limited to hydrogen sulfide gas cylinder, hydrogen chloride gas cylinder, heating mantle (capacity of 500ml or greater), etc. Precursers include products such as ephedrine, ethyl phenyl acetate, hypophosphite salts, hypophospherous acid, etc.

Supply of prohibited drugs

Supply is defined by the Drug Misuse and Trafficking Act as “sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering, or receiving for supply, or authorising, directing, causing suffering, permitting or attempting an of those acts or things”.

A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. 

For offences involving less than a commercial quantity of cannabis plant/leaf, the maximum penalty is 10 years imprisonment, a fine of $220,000 or both. For offences involving not involving cannabis plant/leaf, the maximum penalty is 15 years imprisonment, a fine of $220,000 or both. 

A person who supplies, or knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. 

For offences involving cannabis, the maximum penalty is 15 years imprisonment, a fine of $385,000 or both. For offences not involving cannabis, the maximum penalty is 20 years imprisonment, a fine of $385,000 or both. If the offence is not less than a large commercial quantity and involves cannabis plant/leaf, the maximum penalty is 20 years imprisonment, a fine of $550,000 or both. If the offence doesn’t involve cannabis plant/leaf, the maximum penalty is life imprisonment, a fine of $550,000 or both.

The commercial quantity of cannabis is 25.0kg. The large commercial quantity of cannabis is 100kg.

The NSW Court of Criminal Appeal set out factors relevant to determining the seriousness of the offence in Vu v R [2006] NSWCCA 188:

  • The terms of the offence, in particular, the quantity of a drug, its price, etc
  • Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs
  • Whether, and if so, the extent to which the offer is motived by reasons of commercial gain or greed
  • Whether the offeror at all material times had the intention to fulfil the offer
  • Whether the offeror had the capacity to fulfil the offer to supply
  • Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances

Commonwealth Drug Offences

Commonwealth drug offences are dealt with under the Criminal Code Act 1995 (Cth) and Criminal Code Regulation 2019. Commonwealth drug offences are prosecuted by the Commonwealth Director of Public Prosecutions. Controlled drugs and border controlled drugs are listed in the Commonwealth Criminal Code Regulation 2019.

Commonwealth drug offences include 

  • Trafficking controlled drugs (for example MDMA)
  • Commercial cultivation of controlled plants (for example cannabis)
  • Selling controlled drugs
  • Commercial manufacture of controlled drugs
  • Pre-trafficking controlled substances (for example ephedrine)
  • Importation and exportation offences
  • Drug offences involving children
  • Harm and danger to children under 14 from serious drug offences
  • Combining quantities of drugs, plants or precursors

Like state drug offences, Commonwealth drug offences are dealt with summarily and on indictment. As of July 2020, penalty units increased to $222 per unit which means the maximum penalty has increased. 

We have focused on the offences of trafficking controlled drugs, pre-trafficking controlled substances and importation/exportation offences. For advice on these drug offences or others listed above, contact our law firm. 

Trafficking controlled drugs:

Trafficking is defined by the Commonwealth Criminal Code as:

  • Selling the substance
  • Preparing the substance for supply with intention of selling or believing another person intends to sell it
  • Transports the substance with the intention of selling or believes another person intends to sell it
  • Guarding or concealing the substance with the intention of selling or assisting another person to sell it
  • Possession of the substance with the intention of selling it

Trafficking commercial quantities of controlled drugs:

A person commits an offence if:

  • The person traffics the substance; and
  • The substance is a controlled drug; and
  • The quantity trafficked is a commercial quantity

The maximum penalty is life imprisonment, a fine of $1, 665,000 or both

An example of commercial quantity of heroin is 1.5kg.

Trafficking marketable quantities of controlled drugs:

A person commits an offence if:

  • The person traffics in a substance; and
  • The substance is a controlled drug; and
  • The quantity trafficked is a marketable quantity

The maximum penalty is 25 years imprisonment, a fine of $1,221,000 or both

An example of the marketable quantity of heroin is 250.0 grams.

Trafficking controlled drugs:

A person commits an offence if:

  • The person traffics a substance; and
  • The subject is a controlled drug

The maximum penalty 10 years imprisonment, a fine of $444,000 or both

An example of the trafficable quantity of heroin in 2.0 grams.

Importing and Exporting Offences

A person is guilty of an offence if:

  • The person imports or exports a substance; and
  • The substance is a border controlled precursor; and
  • The quantity imported or exported is a commercial quantity

The maximum penalty is 25 years imprisonment, a fine of $1,110,000 or both

An example the commercial quantity of the precursor ephedrine is 1.2kg.

Importing and exporting marketable quantities of border controlled precursors

A person commits an offence if:

  • The person imports or exports a substance; and
  • The substance is a border controlled precursor; and
  • The quantity imported or exported is a marketable quantity

The maximum penalty for this offence is 15 year imprisonment, a fine of $666,000 or both

An example of the marketable quantity of the precursor ephedrine is 400.0g.

Importing and exporting border controlled precursors

A person commits an offence if:

  • The person imports or exports a substance; and 
  • The substance is a border controlled precursor

The maximum penalty for this offence is 7 years imprisonment, a fine of $310,800 or both

Importing and exporting commercial quantities of border controlled precursors

A person is guilty of an offence if:

  • The person imports or exports a substance; and
  • The substance is a border controlled precursor; and
  • The quantity imported or exported is a commercial quantity

The maximum penalty is 25 years imprisonment, a fine of $1,110,000 or both

An example the commercial quantity of the precursor ephedrine is 1.2kg.

Importing and exporting marketable quantities of border controlled precursors

A person commits an offence if:

  • The person imports or exports a substance; and
  • The substance is a border controlled precursor; and
  • The quantity imported or exported is a marketable quantity

The maximum penalty for this offence is 15 year imprisonment, a fine of $666,000 or both

An example of the marketable quantity of the precursor ephedrine is 400.0g.

Importing and exporting border controlled precursors

A person commits an offence if:

  • The person imports or exports a substance; and 
  • The substance is a border controlled precursor

The maximum penalty for this offence is 7 years imprisonment, a fine of $310,800 or both

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with a solicitor from our law firm for legal advice tailored to your specific legal problem. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

Frequently Asked Questions.

Drug offences are serious offences. You have the right to remain silent. You are not required to participate in an ERISP (recorded interview), however, it should be noted that the police can proceed to formally charging you without an interview. 

Before speaking with police, you should get legal advice. If you have evidence that you did not commit the drug offence or have a reasonable excuse, e.g. you have a prescription for an amphetamine based drug such as ADHD medication, from a medical professional, you should provide a copy to your lawyer.

Yes. Possession of any prohibited drug is a criminal law offence. A prescription from an authorised medical professional may be a defence to the offence of possession of a prohibited drug. For example, possession of an amphetamine based medication for ADHD.

You should speak with your healthcare provider in the first instance. However, there are a number of drug and alcohol services available online and via telephone. Examples include:

Lifeline 13 11 14

Family Drug Support (FDS) 1300 368 186

Alcohol and other Drug Service – This is a service operated through NSW Health. Each local health area has its own contact number.

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