In the state of NSW if a person is found to be in possession of a prohibited drug with an amount greater than the ‘trafficable’’ quantity, then they can be charged with ‘deemed drug supply.’
‘Deemed Drug Supply’ is an indictable offence which means that it starts in the Local Court, and it could be committed to the District Court depending on the seriousness of the case etc.
The maximum penalty is 2 years imprisonment and $5,500 fine (or both) if this type of charge is finalised in the Local Court. If the charge is finalised in the District Court, then it can attract a maximum penalty of 15 years imprisonment!
Lawyers often refer to this type of offence as ‘’Deemed Drug Supply’ and this is because the law deems it that the person who is in possession of a prohibited drug, and if that prohibited drug is above the ‘trafficable quantity’, then that person was in possession of that drug prohibited for the purpose of supplying that prohibited drug. To better understand ‘deemed drug supply’ it should be noted that section 29 of the Drug Misuse & Trafficking Act 1985 states that the offence of ‘deemed drug supply’ applies unless the defendant proves:
- He/ She possessed the drug for a reason other than to supply it; OR
- He/ She gained possession of the drug in accordance with a prescription from a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinarian.
The police usually have to prove beyond a reasonable doubt that the defendant was in possession of that quantity for the purpose of supply. If the defendant is not guilty of the offence of ‘deemed drug supply’ then the defendant must rebut that presumption and then the onus (on the balance of probabilities) will shift to the defendant to prove on the balance of probabilities that he/she were in possession of that prohibited drug for a purpose other than supply. The police will need to prove that the defendant was in possession of a prohibited drug and the amount was greater than the trafficable quantity.
A defendant rebutting the presumption of deemed supply may find it very difficult if the police provide any evidence of scales, mobile phone, certain amounts of cash etc.
“Possession” means the prohibited drug was in the person’s physical custody, or in their control, and the person knew they had custody or control over it.
“Supply” includes sell, distribute, agree to supply, offer to supply, keep or possess for supply; send forward, deliver or receive for supply; or authorise, direct, cause, suffer, or permit, or attempt any of those acts.
How does the law consider the “traffickable” quantity?
This depends on the actual drug as it differs. For example, a traffickable quantity of cannabis is 300g however for heroin the trafficable quantity is 3g.
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*This article correctly reflects the Laws of NSW as at 8th May 2023.
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