A drug offence is characterised by the involvement of a prohibited drug and can involve serious consequences if you don’t have the right legal team defending you.
Types of Drug Offences
Drug Possession
Drug Possession is an offence which carries heavy penalties.
You can avoid a criminal record and a fine if you are able to achieve a Non-Conviction Conditional Release Order or a Section 10 Dismissal.
The maximum penalty for drug possession is 2 years imprisonment and/or a $2,200 fine.
However, this penalty is reserved for only the most serious possession cases. In most cases, the court will impose a lesser penalty after considering all the facts of the case.
The most common penalty for drug possession is a fine, with the average fine amounting to $300.
The next most common penalty is a good behaviour bond.
With a specialist drug lawyer, you can persuade the magistrate to issue you with a non-conviction order such as a ‘conditional release order without a conviction’ or ‘section 10 Dismissal’, which is where you are guilty but no conviction is recorded on your criminal record.
Defences
If you have some reason to explain your actions, you can plead ‘not guilty’ and fight the charges. You can argue that:
- You did not know the drugs had been planted on you, or you could not find drugs upon you after a deep search
- Police did not have reasonable suspicion to search you
- You did not have exclusive possession of the drugs.
- There was no sufficient evidence to prove that you possessed the drugs
Deemed Supply
Deemed supply is where an individual who is found to be in possession of drugs is assumed to have the intent to supply them to others in the absence of any other evidence.
The penalties deemed supply will attract are detailed in the table below:
| Amount | Maximum Penalty | |
| Less than a small quantity | <0.25g of MDMA/ecstasy<1g of amphetamines, cocaine or heroin<30g of cannabis | 2 years imprisonment and/or a $5500 fine if the matter is finalised in the Local Court15 years imprisonment and/or a $220,000 fine if it is finalised in a higher court. |
| Less than an indictable quantity | <1.25g of MDMA/ecstasy<5g of amphetamines, cocaine or heroin<1kg of cannabis | 2 years imprisonment and/or an $11,000 fine if the matter is finalised in the Local Court.15 years imprisonment and/or a $220,000 fine if the matter is finalised in a higher court. |
| Less than a commercial quantity | <125g of MDMA/ecstasy<250g of amphetamines, cocaine or heroin<25kg of cannabis | 15 years imprisonment and/or a $220,000 fine. May only be heard in higher courts. |
| Less than a large commercial quantity | <500g of MDMA<1kg of amphetamines, cocaine or heroin<100kg of cannabis | Life imprisonment and/or $550,000 fine. May only be heard in higher courts |
Defences
You can fight charges of deemed drug supply by presenting all evidence to show that you did not intend to supply the drugs. For instance:
- Evidence that you didn’t have any other implements or indications of drugs
- Evidence that the drugs were for personal use, or that you were holding them for a friend.
Drug Cultivation
Cultivating prohibited plants is the act of scattering or sowing seeds of, or planting, growing, tending, harvesting or nurturing prohibited plants.
To be found guilty of the offence, the prosecution must prove beyond reasonable doubt that you cultivated, or knowingly took part in the cultivation of, a prohibited plant.
Drug cultivation offences vary and the maximum penalty will vary depending on the number of plants (cannabis) or weight of plants (Erythroxylon and poppies); whether the cultivation took place by enhanced indoors means and, if so, whether the prosecution can prove the plants were cultivated for a commercial purpose; whether or not the cultivation took place in the presence of a child; and whether the case is finalised in the local court (where the penalties are lower) or in a higher court such as the district court.
Defences
To defend yourself against drug cultivation charges, you need to show reasonable doubt on the possibility that you knowingly cultivated or took part in the cultivation of a prohibited plant.
Cultivating a Prohibited Plant
To establish the offence of drug cultivation the prosecution must prove beyond reasonable doubt that:
- You cultivated, or knowingly took part in the cultivation of, a plant, and
- The plant was a prohibited plant.
If the prosecution is not able to prove these ‘elements’, you are entitled to be found not guilty.
‘Cultivating’ means to scatter or sow the seeds produced by prohibited plants, or to plant, grow, tend to, nurture or harvest the plants.
To ‘knowingly take part in cultivation’ is to:
- Take part or participate in any step of the cultivation process, or cause any such step to be taken,
- Arrange or provide finance for any step in the cultivation process, or
- Provide the premises for any step in the cultivation process, or suffer or permit any such step to be taken in a premises for which a person is the owner, lessee, manager or occupier.
It is important to keep in mind that you may have a valid legal defence to the charge. If the prosecution is unable to do this, you have to be acquitted.
Cultivating a Prohibited Plant
| Number of Cannabis plants | Maximum Penalty | |
| Local Court | District Court | |
| 1 – 5 | 2 years imprisonment and/or $5,500 fine. | 10 years imprisonment and/or $220,000 fine |
| 6 – 249 | 2 years imprisonment and/or $11,000 fine. | 10 years imprisonment and/or $220,000 fine |
| 250 – 999 | Not applicable | 15 years imprisonment and/or $385,000 fine |
| 1000 or more | Not applicable | 20 years imprisonment and/or $550,000 |
Cultivating a Prohibited Plant by Enhanced Indoor Means
To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution needs to prove beyond reasonable doubt that:
- You cultivated, or knowingly took part in the cultivation of, a plant,
- The plant was a prohibited plant, and
- The cultivation took place by way of enhanced indoor means.
‘Enhanced indoor means’ is where the cultivation:
- Occurred within a building or structure, and
- Involved any one or more of the following:
- the nurture of the plant in nutrient-enriched water
- the application of an artificial source of light or heat, or
- suspending the plant’s roots and spraying them with a nutrient solution.
| Number of Cannabis plants | Maximum Penalty | |
| Local Court | District Court | |
| 1 – 5 | 2 years imprisonment and/or $5,500 fine. | 10 years imprisonment and/or $220,000 fine |
| 6 – 49 | 2 years imprisonment and/or $11,000 fine. | 10 years imprisonment and/or $220,000 fine |
| 50-199 | Not applicable | 15 years imprisonment and/or $385,000 fine |
| 200 or more | Not applicable | 20 years imprisonment and/or $550,000 |
Cultivating a Prohibited Plant by Enhanced Indoor Means for Commercial Purpose
To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution needs to prove beyond reasonable doubt that:
- You cultivated, or knowingly took part in the cultivation of, a plant,
- The plant was a prohibited plant,
- The cultivation took place by way of enhanced indoor means, and
- The cultivation was for a commercial purpose.
‘Commercial purpose’ means:
- With the belief that another intended to sell it or any of its products, or
- With the intention of selling it or any of its products.
| Number of Cannabis plants | Maximum Penalty | |
| Local Court | District Court | |
| 1 – 5 | 2 years imprisonment and/or $5,500 fine. | 10 years imprisonment and/or $220,000 fine |
| 6 – 49 | 2 years imprisonment and/or $11,000 fine. | 10 years imprisonment and/or $220,000 fine |
| 50-199 | Not applicable | 15 years imprisonment and/or $385,000 fine |
| 200 or more | Not applicable | 20 years imprisonment and/or $550,000 |
Cultivating a Prohibited Plant by Enhanced Indoor Means in the Presence of Child
To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:
- You cultivated, or knowingly took part in the cultivation of, a plant,
- The plant was a prohibited plant,
- The cultivation took place by way of enhanced indoor means, and
The cultivation occurred in the presence of a child or children.
| Number of Cannabis plants | Maximum Penalty | |
| Local Court | District Court | |
| 1 – 5 | 2 years imprisonment and/or $5,500 fine. | 12 years imprisonment and/or $264,000 fine |
| 6 – 49 | 2 years imprisonment and/or $11,000 fine. | 12 years imprisonment and/or $264,000 fine |
| 50-199 | Not applicable | 18 years imprisonment and/or $462,000 fine |
| 200 or more | Not applicable | 24 years imprisonment and/or $660,000 |
Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose in the Presence of Child
To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution needs to prove beyond reasonable doubt that:
- You cultivated, or knowingly took part in the cultivation of a plant,
- The plant was a prohibited plant,
- The cultivation took place by way of enhanced indoor means,
- The cultivation was for a commercial purpose, and
- The cultivation occurred in the presence of a child or children.
| Number of Cannabis plants | Maximum Penalty | |
| Local Court | District Court | |
| 1 – 5 | Not applicable | 18 years imprisonment and/or $462,000 fine |
| 6 – 49 | Not applicable | 18 years imprisonment and/or $462,000 fine |
| 50-199 | Not applicable | 18 years imprisonment and/or $462,000 fine |
| 200 or more | Not applicable | 24 years imprisonment and/or $660,000 |
Drug Importation/Exportation
To be found guilty of drug importation or exportation, the prosecution must prove beyond a reasonable doubt that:
- You imported or exported a substance,
- The substance was a border controlled substance, and
- You knew the substance was a border controlled substance, or were reckless as to whether or not it was a border controlled substance.
The term ‘import’ includes to bring a substance into Australia, as well as to deal with a substance in connection with its importation.
The term ‘reckless’ means you foresaw there was a substantial risk the substance was a border controlled plant but went ahead with your actions regardless.
Further, depending on the type of offence that you have been charged with, the prosecution may also need to prove the quantity of drugs that you imported.
The quantity that the prosecution has to prove relates to the pure quantity of the drugs.
Defences
In addition to proving the essential elements (or ingredients) of a drug importation or exportation charge (which includes identifying you as the offender and proving you had the required knowledge), the prosecution must disprove beyond a reasonable doubt any legal defences which you may validly raise.
Such defences include duress, which is where you were threatened that imminent serious harm would occur to you or someone close to you if you did not participate in the offence.
Drug importation/exportation cases can also be defended on grounds of mental illness and where the pure weight of the drug is less than the prescribed quantity that is alleged.
If you wish to accept the charges against you, you have the option of entering a plea of ‘guilty’.
The maximum penalties for drug importation, as well as the actual ‘median’ penalties handed out by the courts, depend largely on the type and amount of drug involved.
The importation/exportation regime is outlined in the table below:
| Offence | Quantity | Maximum Penalty |
| Importing a commercial quantity of drugs | Ecstasy: 500 grams Amphetamines:750 grams Heroin: 1.5 kilograms Cocaine: 2 kilograms Cannabis: 100 kilograms | Life imprisonment |
| Importing a marketable quantity of drugs | Ecstasy: 0.5 grams Amphetamines, heroin and cocaine: 2 grams Cannabis: 25 kilograms | 25 years imprisonment |
| Importing any quantity of drugs | The prosecution does not need to prove a particular quantity; it will be enough to import any quantity of drugs. | 10 years imprisonment |
Ultimately, the actual penalty that you will receive will depend on the facts and circumstances of your case – including your degree of involvement, position in the hierarchy, prior criminal history, efforts to rehabilitate and likelihood of reoffending.
The various penalties that the court can impose include:
- Section 10 Dismissal
- Conditional Release Order
- Fine
- Community Correction Order
- Intensive Correction Order
- A shorter prison term
Drug Manufacture/Exportation
The offences and penalties associated with drug manufacture and exportation are detailed below.
| Amount | Maximum Penalty | ||
| Local Courts | Higher Courts | ||
| Small | 0.25g ecstasy1 gram cocaine or amphetamines | Not more than a small quantity: 2 years imprisonment and/or $5,500 fine.More than the small quantity but less than the indictable quantity: 2 years imprisonment and/or $11,000 fine. | Not more than a small quantity: 15 years imprisonment and/or $220,000 fine.More than the small quantity but less than the indictable quantity:15 years imprisonment and/or $220,000 fine. |
| Indictable | 1.25g ecstasy5g cocaine or amphetamines | Only dealt with by higher courts. | More than the small quantity but less than the indictable quantity: 15 years imprisonment and/or $220,000 fine. |
| Commercial | 125g ecstasy250g cocaine or amphetamines | Only dealt with by higher courts. | More than the indictable quantity but less than the commercial quantity: 15 years imprisonment and/or $220,000 fine. |
| Large Commercial | 0.5kg ecstasy1 kg cocaine or amphetamines | Only dealt with by higher courts. | More than the commercial quantity but less than the large commercial quantity: 20 years imprisonment and/or $385,000 fine.Large commercial quantity: Life imprisonment and/or $550,000 fine. |
Defences
- Duress: Where you were coerced or threatened into manufacturing or producing the drugs
- You were unaware that your actions were contributing towards the manufacturing of drugs
- You simply moved or obtained materials for manufacture but did not participate in the process
- You used materials which were incapable of manufacturing a prohibited drug
- You possessed materials capable of drug manufacture but did not arrange, plan or engage in such acts.
Drug Premises
Owning drug premises may attract a maximum penalty of 12 months imprisonment or a $5,500 fine of both. To convict an individual of operating drug premises, the prosecution must prove, beyond reasonable doubt, that the individual owned land or buildings that they knew were being used to manufacture, grow or supply illegal drugs.
Defences
- If it can be shown that you were entering, leaving or on the premises for a lawful purpose or with a lawful excuse;
- If you were unaware that the premises were being used for the purposes of drug manufacture, cultivation or supply
Drug Supply
Drug Supply includes selling, giving away for free and participating in any stage of the supply process.
The most common prohibited drugs are:
- MDMA
- Cannabis
- Cocaine, and
- Heroin
The relevant weight is the ‘admixture’ which means the total weight of the substance.
The maximum penalties for drug supply depend on the type of drug, quantity and where the case is held.
Drug Type/Quantity Categories
| Drug Type | Small Quantity | Indictable Quantity | Commercial Quantity | Large Commercial Quantity |
| Ecstasy (MDMA) | 0.25grams | 1.25grams | 125grams | 500grams |
| Cocaine | 1gram | 5 grams | 250grams | 1kg |
| Amphetamines | 1gram | 5 grams | 250grams | 1kg |
| Heroin | 1gram | 5 grams | 250grams | 1kg |
| Cannabis | 30 grams | 1kg | 25kg | 100kg |
Maximum penalties
| Quantity Category | Local Court | District Court |
| Less than Small Quantity | 2 years prison and/or $5,500 fine | 15 years prison and/or $220,000 fine |
| At Least Small Quantity but Less Than Indictable Quantity | 2 years prison and/or $11,000 fine | 15 years prison and/or $220,000 fine |
| At Least Indictable Quantity but Less Than Commercial Quantity | 2 years prison and/or $11,000 fine | 15 years prison and/or $220,000 fine |
| At Least Commercial Quantity but Less Than Large Commercial Quantity | Not Applicable | 20 years prison and/or $385,000 fine |
| At Least Large Commercial Quantity | Not Applicable | Life imprisonment and/or $550,000 fine |
To establish the offence, the prosecution needs to prove beyond a reasonable doubt:
- That you supplied, or took part in the supply of, a substance
- That substance was a prohibited drug, and
- You knew, or believed at the time, that the substance was a prohibited drug
If the prosecution is unable to prove each of these elements, you must be acquitted.
It is important to know that the prosecution must prove you knew the drugs were there, and that you had ‘exclusive possession’ of those drugs.
The charge may dismissed if the court if police performed an unlawful search, where the desirability of admitting the evidence of the drugs found is outweighed by the undesirability of admitting such illegally obtained evidence.
Defences
- Duress: Where your actions were due to a threat of serious injury or death, and there was no reasonable way for you to render the threat ineffective, and your conduct was a reasonable response to the threat.
- Necessity: There was an overbearing factor which caused you to break the law in order to avoid serious consequences.
Carey defence: Temporarily holding for another person.
Drug Supply on an Ongoing Basis
Drug supply is characterised by a maximum penalty of 2 years of incarceration if heard in a lower court or 20 years imprisonment if heard in a higher court. To find an individual guilty of drug supply, the prosecution must prove beyond a reasonable doubt the following elements:
- That the individual supplied any prohibited drug, other than cannabis, on three or more occasions within a 30 day period, and
- That the individual received some form of monetary or material benefit from it, such as cash, gifts, other drugs or the promise of a promotion.
Defences
- You were holding the drugs for someone else
- The drugs were for personal use
- You did not supply the drugs 3 times or more within 30 consecutive days
- Duress: you have been intimidated or threatened into drug supply against your will.
Use Prohibited Drug
In NSW it is an offence to use prohibited drugs. The use or attempt to use prohibited drugs is a separate offence to drug supply and drug possession.
A person can be charged with this offence if they snort, inject, smoke, ingest, swallow or otherwise consume prohibited drugs. They can also be charged if they are caught attempting to do these things.
The maximum penalty is 2 years imprisonment or 20 penalty units.
The Offence Of Use Prohibited Drug
A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.
However, a person administering or attempting to administer a prohibited drug to themselves, which has been lawfully prescribed for or supplied to them, is not unlawful.
What The Police Must Prove
The prosecution must prove each of the following beyond a reasonable doubt to convict you of using a prohibited drug:
- That you administered or attempted to administer a substance;
- That substance was a prohibited drug; and
- That you administered or attempted to administer the substance to yourself.
Defences
- Arguing that the substance was not a prohibited drug; or
- Showing that you have a lawfully obtained script for the drug;