Supply Prohibited Drugs Charges
Clear advice on penalties, deemed supply and defences for NSW drug supply charges.
Supplying a prohibited drug is an offence under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW), and the definition of "supply" is deliberately broad. It includes selling, distributing, agreeing to supply, offering to supply, and even simply having a drug in your possession for the purpose of supply — no money or commercial element needs to change hands, meaning sharing drugs among friends or passing them on without payment can still amount to supply in law.
A central feature of NSW drug law is "deemed supply" under section 29. Where a person is found in possession of a prohibited drug at or above the traffickable quantity set out in Schedule 1 for that drug, the law presumes the drug was possessed for supply rather than personal use, unless the accused proves otherwise on the balance of probabilities. This reverses the usual burden of proof for that specific issue and makes evidence about personal drug use, quantity, packaging and the absence of items such as scales or bags critical to the defence of these charges.
The maximum penalty for supply is tiered according to the quantity of drug involved, measured against the indictable, commercial and large commercial quantities set for each specific drug type in Schedule 1. Small-quantity matters can often be dealt with in the Local Court, while commercial and large commercial quantity supply is dealt with in the District Court and treated as very serious offending, particularly where the accused played more than a minor, addiction-driven role.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Supply not exceeding indictable quantity | 2 years imprisonment and/or a fine of 100 penalty units (Local Court, summary jurisdiction) | A Table 1 offence able to be dealt with in the Local Court where the quantity does not exceed the indictable quantity for that drug, though the underlying maximum available on indictment is up to 15 years imprisonment and/or 2,000 penalty units. |
| Supply — commercial quantity | 20 years imprisonment and/or a fine of 3,500 penalty units | Applies once the quantity of the drug reaches the commercial quantity set for that drug type in Schedule 1. Dealt with in the District Court and treated as serious, organised-level offending. |
| Supply — large commercial quantity | Life imprisonment and/or a fine of 5,000 penalty units | Applies to the highest quantity tier, reserved for the most serious supply matters. These matters attract the most severe sentences available under NSW drug law. |
| Deemed supply (s29) | Same tiered penalties as above | Possession of a traffickable quantity or more is presumed to be for supply unless the accused proves, on the balance of probabilities, that the drug was possessed for another purpose, such as personal use. |
Possible Defences
Ways this charge can be challenged
Rebutting deemed supply
Where a charge relies on the deemed supply presumption, the defence can lead evidence — such as the accused’s own drug use, the absence of scales, resealable bags or cash consistent with dealing, and the circumstances of the find — to prove on the balance of probabilities that the drug was possessed for personal use rather than supply.
No knowledge of the drug
Supply, like possession, requires that the accused knew or was aware of the likelihood that the substance was a prohibited drug and that it was in their custody or control. Where drugs were found in a shared vehicle, home or bag without the accused’s knowledge, this element may not be established.
Unlawful search or surveillance
Police search and surveillance powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) are subject to legal requirements, including reasonable suspicion. Where a search, telephone intercept or surveillance device was not lawfully authorised, an application can be made to exclude the resulting evidence, which can significantly weaken the prosecution case.
Duress
Where a person supplied a drug only because they were compelled to by an immediate and genuine threat to their safety or that of another, the defence of duress may be available, though courts apply this narrowly and require evidence of a real, pressing threat with no safe alternative.
What Happens Next
The Local Court process
- 01
Drug supply matters are typically detected through police searches, surveillance, controlled operations, or the interception of communications, after which the accused is arrested and either bail-assessed or granted conditional bail, with bail often opposed for commercial and large commercial quantity matters.
- 02
At the first mention in the Local Court, a plea of guilty or not guilty is entered, and the matter is assessed to determine whether it can remain in the Local Court or must proceed towards the District Court based on the quantity involved.
- 03
Where the matter stays in the Local Court, a not guilty plea leads to service of the brief, including the certificate of analysis confirming the drug and its weight, before a defended hearing.
- 04
Where the quantity exceeds the indictable quantity, the matter proceeds through committal in the Local Court before arraignment and either a jury trial or a sentencing hearing in the District Court.
- 05
At any hearing or trial, the prosecution must prove the identity and quantity of the drug and that the accused supplied it or possessed it for supply, while the defence can challenge the legality of the search or surveillance and, where deemed supply applies, seek to prove the drug was for personal use.
- 06
On a finding of guilt or a guilty plea, the court considers the quantity and type of drug, the accused’s role (courier, addiction-driven supplier, or organiser), any prior record, and personal circumstances before sentencing.
Frequently Asked Questions
Common questions
If you are found with a prohibited drug at or above the traffickable quantity set for that drug, the law presumes it was possessed for supply rather than personal use. You can rebut this presumption by proving, on the balance of probabilities, that the drug was actually for your own use or another non-supply purpose.
Yes. "Supply" is defined broadly and includes giving, distributing or agreeing to provide a drug to another person, regardless of whether any money or other benefit was exchanged. A commercial motive is not required for the offence to be made out.
Possession involves having a drug in your custody or control for your own purposes, while supply involves providing, distributing or intending to provide the drug to someone else. The quantity found, packaging, and other surrounding evidence often determine which charge is laid, particularly where deemed supply is in issue.
Yes, significantly. The maximum penalty is tiered according to whether the quantity is below the indictable quantity, at or above the commercial quantity, or at or above the large commercial quantity for that specific drug, with penalties ranging from a Local Court matter through to a maximum of life imprisonment.
It depends heavily on the quantity involved and your role. Smaller, addiction-driven supply matters can sometimes result in non-custodial outcomes, particularly for a first offence, while commercial and large commercial quantity supply is treated very seriously and full-time imprisonment is common.
Yes. If police did not have the reasonable suspicion or other legal authority required to conduct the search, intercept communications, or use a surveillance device, an application can be made to exclude the resulting evidence, which can significantly weaken or defeat the prosecution case.
Related Offences
You may also be looking for
Going to court?
Speak with our team today for a free first conference and clear, fixed-fee advice on your matter.
Call 0414 444 474