Deemed Supply  – s 29 Drugs Misuse & Trafficking Act 1985 (NSW)

The maximum penalty for this offence varies depending on the quantity of the drug:

If you are convicted of CANNABIS supply, then the following maximum penalties apply:

• Traffickable quantity (300g) – 10 yrs. gaol and / or a $220,000 fine ($11,000 – Local Court).
• Indictable quantity (1kg) – 10 yrs. gaol and / or a $220,000 fine.
• Commercial quantity (25kg) – 15 yrs. gaol and / or a $385,000 fine.
• Large commercial quantity (100kg) – 20 yrs. gaol and / or a $550,000 fine.

Under state laws, the quantity of the drug is determined by its gross weight, including additives. Under federal or commonwealth laws, the quantity of the drug is determined by the pure quantity of the drug.

NB: if a matter is heard in the local court, then the maximum gaol term is 2 years.

These penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• you supplied or took part in the supply of a prohibited drug; and
• that at the time of supply, you knew or believed the drug was prohibited.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A fine
  • This varies depending on the type and quantity of the drug.
•  A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty,  but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option (when aggravating circumstances Examples of aggravating circumstances include a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

The Prosecution must establish, beyond a reasonable doubt that:

• you supplied or took part in the supply of a prohibited drug; and
• that at the time of supply, you knew or believed the drug was prohibited.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

You must prove, on the balance of probabilities, that the drugs were not intended for supply.

Defences to ‘deemed supply’ a prohibited drug.

• You did not supply or take part in the supply of prohibited drugs.
• The drugs were for personal use.
• You did not know that the drugs were prohibited.
• The drugs were not prohibited drugs.
• A Carey Defence.
  • This defence holds that the temporary possession of a prohibited drug with an intention of returning it to the owner is not drug supply: R v Carey (1990) 20 NSWLR 292.
    • The Carey Defence can apply to part of a drug in possession. This may mean being convicted of supplying a smaller quantity.
• The drugs were not in your exclusive possession.
  • Exclusive possession means that you possessed the drugs to the exclusion of all others. If this cannot be proven, neither can the charge of supply a prohibited drug.
• Duress.
  • Another person threatened or coerced you into supplying the prohibited drugs