Ongoing Supply of Prohibited Drugs – s 25(A) Drugs Misuse & Trafficking Act 1985 (NSW)

The maximum penalty for this offence is:

• Imprisonment for 20 years, or a
• a fine of $385,000.00, or both.

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• on three or more occasions within 30 days,
• you supplied a prohibited drug or drugs; and
• the prohibited drugs were supplied for financial or other reward.

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 may be up to $385,000.00
• 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.

In Fayd’herbe v R [2007] NSWCCA 20 at [18], the court held that offences under s 25A will attract a full-time custodial sentence unless there are exceptional circumstances.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• on three or more occasions within 30 days,
• you supplied a prohibited drug or drugs; and
• the prohibited drugs were supplied for financial or other reward.

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

• NB: Subsection (4) allows for an alternative verdict where the jury is satisfied that the person has, committed a relevant supply offence. The person is liable to punishment accordingly.

Subsection (5) is a double jeopardy provision that prevents a person convicted of this offence to be convicted or a relevant supply offence or of a separate offence under this section.

Defences to ongoing supply a prohibited drug

• The 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 drug quantity.
• You did not supply prohibited drugs.
• The drugs were for personal use.
• Drugs were not supplied three times or more within 30 consecutive days.
• You did not receive a financial or other reward.
  • IE. the prohibited drug or drugs were given away.
• 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 on an ongoing basis.
• Duress.
  • Another person threatened or coerced you into taking possession of the prohibited drugs.