Introduction

Too much of anything is a bad thing, and this rule certainly applies to drugs. In New South Wales, deemed drug supply is a serious offence that applies when a person is found in possession of a prohibited drug exceeding the traffickable quantity. Under section 29 of the Drug Misuse and Trafficking Act 1985 (NSW), it is presumed that the possession of such a quantity is for the purpose of supply, unless the accused can prove otherwise. This legal presumption shifts the burden of proof to the accused, making it a complex and challenging charge to defend against.

This guide provides essential information about deemed drug supply, including its legal definition, how the presumption works, and strategies for rebutting the charge. It also explores the penalties for deemed supply offences and offers practical advice for those facing such charges. By understanding the law and available defences, individuals can better navigate the legal system and seek appropriate support.

What is Deemed Drug Supply in NSW

What the Term ‘Deemed Drug Supply’ Means

Deemed drug supply occurs when a person is charged with drug supply solely because they possess a prohibited drug in an amount exceeding the traffickable quantity. This applies even without any evidence of actual supply or intent to supply. For example, being found with 300 grams of cannabis or 3 grams of cocaine can trigger a deemed supply charge.

In these cases, the prosecution does not need to prove that the drugs were supplied or intended for supply; mere possession of the traffickable quantity is sufficient.

Key points about deemed drug supply include:

• Traffickable Quantity: Varies by drug—300 grams for cannabis; 3 grams for cocaine, heroin and amphetamines.
• Prohibited Drugs: Substances listed under Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), such as MDMA, LSD and GHB.
• Possession: Encompasses physical custody or control of the drug, provided the person knows it is present.

Explanation of Section 29 of the Drug Misuse and Trafficking Act

Section 29 of the Drug Misuse and Trafficking Act 1985 (NSW) introduces a rebuttable presumption that possession of a traffickable quantity of a prohibited drug implies an intention to supply. As a result, the burden of proof shifts to the accused.

Key aspects of section 29 include:

• Rebuttable Presumption: the accused must demonstrate, on the balance of probabilities, an alternative purpose for the drugs—such as personal use.
• Exceptions: the presumption does not apply to legally obtained prescription medication.
• Prosecution’s Role: limited to proving possession and quantity, not intent to supply.

To rebut this presumption, the defence might argue that the drugs were for personal use or were temporarily held on behalf of someone else. Evidence such as the absence of supply indicia (for example, scales or plastic bags) can strengthen this defence. If successful, the charge may be withdrawn or reduced. It is important to note that the regular criminal law onus is reversed here – normally, the prosecution must disprove the innocence of the accused, but in deemed supply cases, the accused must defend their innocence. This puts significant pressure on the accused, and so it is vital to enlist comprehensive legal support.

How the Presumption of Deemed Drug Supply Works & How to Rebut It

Proving Drugs Were for Personal Use

One common strategy to rebut the presumption of deemed drug supply is to establish that the drugs were intended for personal use rather than for supply. This requires the accused to prove, on the balance of probabilities, that the drugs were not intended for supply.

Key factors that may support this defence include:

• Quantity of the drug: Smaller amounts of substances such as cannabis, cocaine or heroin may align more closely with personal consumption than with distribution.
• Lack of indicia of supply: The absence of items typically associated with dealing—such as resealable plastic bags, scales or large sums of cash—can weaken the prosecution’s case.
• Personal circumstances: A documented history of drug use or addiction may bolster the claim that the drugs were for personal use.

For example, discovering only a modest quantity of cannabis without packaging materials makes it harder to argue that the accused intended to supply others.

Arguing Temporary Possession & Carey Defence

Another effective way to rebut the presumption is by arguing that possession was merely temporary and that the accused intended to return the drugs to their rightful owner. This approach is known as the Carey defence, established in the case of R v Carey (1990).

Under this defence, the accused must demonstrate that:

• The drugs were in their possession only temporarily.
• The intent was to return the drugs to the owner or another individual.
• Such temporary possession did not amount to supply under the law.

For instance, if someone holds drugs briefly on behalf of a friend with the intention of returning them shortly, this may not constitute supply. In considering the Carey defence, the court will look at factors such as the duration of possession and the credibility of the explanation provided.

If the Carey defence succeeds, charges may be withdrawn or dismissed, since the prosecution would be unable to prove the drugs were in the accused’s possession for the purpose of supply.

Penalties & Sentencing for Deemed Drug Supply Offence in NSW

Factors Considered in Determining the Penalty

When determining the penalty for a deemed drug supply offence, courts consider several key factors. These include:

• The type and quantity of the prohibited drug
• The level of planning and sophistication involved in the offence
• Whether there was any trafficking or profit made

Additionally, courts examine the circumstances surrounding the offence, such as the presence of indicia of supply (e.g., scales, resealable plastic bags, or large amounts of cash), and whether the accused was part of a larger syndicate.

The offender’s role within any syndicate and the reasons behind their actions are also considered.

Maximum Penalties in Local Court Versus Higher Court

The maximum penalties for deemed drug supply offences vary significantly depending on the court in which the matter is heard.

In the Local Court, the maximum penalty is typically:

• A two-year prison sentence
• A fine of up to $5,500
• Or both

However, if the offence is serious enough to be heard in a higher court, such as the District Court, the penalties can be substantially more severe. Maximum sentences range from 15 years imprisonment for less serious cases to life imprisonment for the most serious offences, such as large commercial or industrial-scale drug supply.

The specific penalties depend on the type and quantity of the drug involved, as well as the overall seriousness of the offence.

Conclusion

Deemed drug supply in New South Wales is a serious offence that carries significant legal consequences. This guide has explored the legal definition of deemed supply under section 29 of the Drug Misuse and Trafficking Act 1985 (NSW), the strategies for rebutting the presumption of supply, and the potential penalties that may apply. Understanding these elements is crucial for anyone facing charges, as it highlights the importance of presenting a strong defence and the potential impact of penalties.

If you or someone you know is facing a deemed drug supply charge, it is essential to seek immediate legal advice from experienced criminal defence lawyers. Contact Daoud Legal in Sydney today to discuss your case and explore your options for a robust defence. Our team of experts is here to provide tailored legal solutions and support to help you navigate this complex legal situation.

Frequently Asked Questions