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Have you been charged with a Drug Offence?
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.
Speak to a lawyer today
If you are arrested and/or charged with a drug offence, it is essential that you get legal advice before speaking with Police.
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.
In a nutshell...
Unless a defence is Possession and administration of prohibited drugs is illegal and can result in a fine, criminal conviction 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
In a nutshell...
The Police have discretion with some minor drug offences, depending on the type of prohibited drug, and may issue a caution or warning where appropriate.
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.
In a nutshell...
The Local Court has a variety of sentencing options provided you have a reasonably ‘clean’ criminal record. Prison is a last resort.
Case Study
Sam attended a music festival in Sydney with friends on the weekend. He came to the attention of police who search him and found one LSD tablet in his possession. Sam is charged with possession of a prohibited drug. Sam seeks legal advice about his matter. His matter is heard in the Local Court. Sam has a ‘clean’ criminal record and this is his first criminal law offence. On the advice of his lawyer, he pleads guilty and provides the court with character references in his favour. Due to his early guilty plea, criminal record, age, trivial nature of the offence (one LSD tablet for personal use) and overall good character, the Magistrate issues Sam with a section 10 dismissal. The court acknowledges Sam’s guilt, finding him guilty, but no conviction is 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
In a nutshell...
Indictable drug offences are serious and have lengthy terms of imprisonment and significant fines. You must get legal advice.
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.
In a nutshell...
Drug trafficking is a serious offence that may result in life imprisonment, million-dollar fines or both. You should seek legal advice for your matter.
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
In a nutshell...
Importing border controlled drugs and border controlled plants such as cannabis is a serious offence. It can result in life imprisonment or extensive fines 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
In a nutshell...
Importing border controlled precursors such as ephedrine is a serious offence. It can result in life imprisonment and/or extensive fines 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.
Related Drug Offense News and Resources
FAQs
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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- 1300 679 272
- PO Box 71 BANKSTOWN NSW 2200
- downingcentredc@justice.nsw.gov.au
- 143-147 Liverpool Street, Sydney NSW 2000
Registry Hours: 9:00 – 4:30
Telephone Hours: 8:30 – 4:30
Days open: Mon – Fri
Parramatta District Court
- (02) 8688 7777
- local-court-bankstown@justice.nsw.gov.au
- 12 George Street, Parramatta NSW 2150
Registry Hours: 9:00 – 4:30
Days open: Mon-Fri
Penrith District Court
- 1300 679 272
- local-court-penrith@justice.nsw.gov.au
- 64-72 Henry Street, Penrith NSW 2750
Registry Hours: 9:00 – 4:30
Days open: Mon-Fri
Campbelltown District Court
- 1300 679 272
- local-court-campbelltown@justice.nsw.gov.au
- Railway Street, Campbelltown NSW 2560
Registry Hours: 9:00 – 4:30
Days open: Mon – Fri
Liverpool District Court
- 1300 679 272
- local-court-liverpool@justice.nsw.gov.au
- 150 George Street, Liverpool NSW 2170
Registry Hours: 9:00 – 4:30
Days open: Mon – Fri
Wollongong District Court
- 1300 679 272
- local-court-wollongong@justice.nsw.gov.au
- 97-99 Market Street, Wollongong NSW 2500
Registry Hours: 9:00 – 1:00 and 2:00 – 4:30
Telephone Hours: 8:30 – 4:30
Supreme Courts
Supreme Court New South Wales
- 1300 679 272
- (02) 9230 8025
- (02) 9230 8233
- GPO Box 3 Sydney NSW 2001 Australia
- sc.enquiries@justice.nsw.gov.au
- Law Courts Building 184 Phillip Street Sydney NSW 2000
Registry Hours: 9:00 AM β 4:30 PM
Telephone Hours: 8:30 AM β 4:30 PM
Days Open: Monday to Friday
Federal Court
Federal Circuit and Family Court of Australia
- 1300 352 000
- (02) 9230 8000
- GPO Box 9991, Sydney NSW
- enquiries@fcfcoa.gov.au
- Lionel Bowen, Building, 97/99 Goulburn St, Sydney NSW 2001
Registry Hours: 9:00 AM β 4:30 PM
Telephone Hours: 8:30 AM β 5:00 PM
Days Open: Monday to Friday
Federal Court
- 1300 720 980
- (02) 9230 8020
- GPO Box 9991, Sydney NSW
- enquiries@fedcourt.gov.au
- 97-99 Goulburn St in the heart of the Sydney CBD
Monday to Friday, 8:30 AM β 4:30 PM
High Court
- (02) 6270 6811
- (02) 6270 6868
- Parkes Place, Canberra ACT 2600
- enquiries@hcourt.gov.au
- Parkes Place, Canberra ACT 2600
Monday to Friday, 8:30 AM β 5:00 PM
Specialised Courts
Childrenβs Court of New South Wales
- 1300 679 272
- (02) 9722 6060
- Cnr Chapel Road and The Mall BANKSTOWN NSW 2200
- PO Box 71 BANKSTOWN NSW 2200
- sc.enquiries@justice.nsw.gov.au
Registry Hours: 9:00 AM β 4:30 PM
Telephone Hours: 8:30 AM β 4:30 PM
Days Open: Monday to Friday
Coronerβs Court New South Wales
- 1300 679 272
- (02) 9230 8025
- (02) 9230 8233
- GPO Box 3 Sydney NSW 2001 Australia
- sc.enquiries@justice.nsw.gov.au
- Law Courts Building 184 Phillip Street Sydney NSW 2000
Registry Hours: 9:00 AM β 4:30 PM
Telephone Hours: 8:30 AM β 4:30 PM
Days Open: Monday to Friday
Industrial Relations Commission of New South Wales
- 1300 679 272
- (02) 9230 8025
- (02) 9230 8233
- GPO Box 3 Sydney NSW 2001 Australia
- sc.enquiries@justice.nsw.gov.au
- Law Courts Building 184 Phillip Street Sydney NSW 2000
Registry Hours: 9:00 AM β 4:30 PM
Telephone Hours: 8:30 AM β 4:30 PM
Days Open: Monday to Friday
Land and Environment Court of New South Wales
- 1300 679 272
- (02) 9230 8025
- (02) 9230 8233
- GPO Box 3 Sydney NSW 2001 Australia
- sc.enquiries@justice.nsw.gov.au
- Law Courts Building 184 Phillip Street Sydney NSW 2000
Registry Hours: 9:00 AM β 4:30 PM
Telephone Hours: 8:30 AM β 4:30 PM
Days Open: Monday to Friday
