NSW drug laws carry heavy penalties for drug offences, especially for those involving cultivation, manufacture or supply of drugs.
Drug crimes in NSW range from possession or use of an illicit drug to offences involving the sale, manufacture, or illegal importation of a drug. Penalties depend upon a number of factors, including the offence charged, the drug involved in the offence, and the quantity of the drug.
Both federal law and the law of NSW cover drug offences. Federal offences tend to focus on the importation of illicit drugs, as well as dealing in illegally imported drugs.
Most drug crimes in NSW are charged under the Drug Misuse and Trafficking Act 1985 (NSW). That Act addresses crimes involving prohibited drugs, including cocaine, methamphetamine, cannabis, heroin, ecstasy, and other illicit drugs. Some prohibited drugs are prohibited for all purposes while others can be possessed legally if they are legitimately prescribed by a doctor.
All drug offences in NSW can have serious consequences. You should consult a lawyer immediately if you are arrested for, charged with, or suspected of a drug crime.
Possession of drugs
Section 10 of the Drug Misuse and Trafficking Act makes it illegal to possess a prohibited drug in NSW. The offence of possession requires proof that:
- the accused possessed the drug, and
- the accused knew that he or she had possession of the drug.
Proof of drugs possession
To possess a drug means to have custody or control of it. Custody means having the drug in your hand, on your person, or otherwise having immediate physical possession of the drug. Control means having the right to decide what will happen with the drug.
Possession does not require custody or control of the drug for any specific length of time. If someone hands you a marijuana cigarette and you accept it, even if you are only passing it to another person, you had possession of the cigarette. You would have a defence, however, if you did not know that the cigarette was a marijuana cigarette.
Two or more people can possess the same drug. Even if the drug is in someone else’s custody, if you have the right to use the drug by asking for it, you are in possession of the drug because you share control of the drug.
Being near other people who possess drugs is not a crime. If you know that drugs are present but the drugs are not in your custody or control, you are not committing the offence of possession.
Proof of knowledge
The prosecution must prove that the accused knew the possessed substance was a prohibited drug. If someone hands you marijuana and tells you that it is oregano, you have a defence based on lack of knowledge. If someone hands you cocaine and tells you it is heroin, however, you cannot claim lack of knowledge because you knew you were in possession of a prohibited drug even if you were mistaken about the drug’s identity.
When someone plants a drug on an accused by, for example, slipping it into the pocket of that person’s jacket, the accused does not have the knowledge that is required for a conviction of possession. Drugs found in your car may be in your presence, but you can only be convicted of possession if you knew the drugs were there.
Use of drugs
Using a prohibited drug violates section 12 of the Drug Misuse and Trafficking Act. “Use” means ingesting (or self-administering) the drug by smoking, inhaling, injecting, or otherwise causing the drug to enter the user’s body.
Use is generally charged when the accused admits to the police that he or she used the drug. Otherwise, the charge either requires eyewitness testimony that the accused used a substance (coupled with test results proving that the substance was a prohibited drug), or evidence of test results of the accused’s blood.
Since blood can be taken only after an arrest, an accused who does not admit to using the drug, and who therefore gives the police no basis for an arrest, will often escape prosecution. When the accused is driving and appears to be impaired, however, there is a greater likelihood that the accused will be arrested and subject to a blood test, even when the accused does not admit to using a prohibited drug. A prosecutor might charge the accused with driving under the influence of a drug rather than using the drug if the prosecutor can prove that the driver was impaired after consuming the drug.
Supply of drugs
The offense of supply is broadly defined by section 3 of the Drug Misuse and Trafficking Act. Supply includes:
- selling a prohibited drug,
- offering to sell a prohibited drug,
- giving away or sharing a prohibited drug,
- possessing a prohibited drug for the purpose of supplying it.
Whether drugs are possessed for personal use or for the purpose of supply may provide the basis for a defence when a charge of supply is based on possession. When a trafficable quantity is possessed, however, a “deemed supply” can be lodged.
“Deemed supply” means the accused is presumed to possess prohibited drugs for the purpose of supply. The burden is on the accused to overcome that presumption by proving that the drugs were possessed for personal use.
Trafficable quantities that justify a deemed supply charge vary, depending on the drug involved. For example, a trafficable quantity of heroin is 3 grams, while a trafficable quantity of cannabis is 300 grams.
Since a trafficable quantity is relatively large, overcoming the presumption that the drug is possessed for supply can be challenging. In some cases, however, the accused can introduce evidence of a significant drug habit, and can argue that purchasing a large quantity at one time results in a better price and is less risky than making many smaller drug sales.
Ongoing dealing with drugs
Supplying a prohibited drug (other than cannabis) on at least three separate occasions over a period of 30 days or less violates section 25 of the Drug Misuse and Trafficking Act. The crime requires proof that the drugs were sold or exchanged for something of value. The crime can be charged whether the same or different prohibited drugs were supplied on each occasion.
The penalties for ongoing dealing are harsher than the penalties for a usual charge of supply. The offence is often charged when an accused supplies drugs to an undercover officer on a regular basis before being arrested.
Trafficking is the same as the offence of supply, except that large quantities of the drug are involved. The penalties vary depending on whether the crime involved an indictable quantity, a commercial quantity, or a large commercial quantity of the drug. Examples of trafficking quantities include:
As is true of “deemed supply” charges, a trafficking charge can be based on possession. The burden is on the accused to prove that the drug was not possessed for the purpose of trafficking.
Manufacturing of drugs
Section 24 of the Drug Misuse and Trafficking Act criminalises the unauthorised manufacture of a prohibited drug. Only licensed entities are authorised to manufacture drugs.
The crime can be lodged against anyone who combines the ingredients necessary to manufacture a prohibited drug. Anyone who assists in that process (for example, by providing equipment or chemicals) can also be charged with the offence of manufacturing.
Planting, growing, tending, or harvesting a prohibited plant violates section 23 of the Drug Misuse and Trafficking Act. All of those acts fit within the definition of “cultivating” a plant.
Indoor cultivation carries more serious penalties. That charge applies when five or more plants are cultivated using an artificial light source or nutrient-enriched water.
Possession of a prohibited plant carries the same penalties as cultivating the plant. Allowing a plant to be grown on one’s property or keeping the plant after it has been harvested are examples of possessing a prohibited plant. The charge requires proof that the accused knew about the plant and had custody or control of it.
The prohibited plant that most commonly leads to criminal charges is cannabis (marijuana). Commercial quantities (more than 250 plants grown outdoors or 50 plants grown indoors) carry higher penalties.
Bringing (or attempting to bring) a “border controlled drug” into Australia is a federal crime. The prosecution must prove that the accused knew that the substance being brought into the country was a border controlled drug. Most illicit drugs are border controlled.