The crime of giving someone a banned drug that leads to their death can lead to serious consequences under section 25C of the Crimes Act 1900 (NSW). Sparked by the heart-breaking deaths during events like the Defqon.1 music festival and Knockout Outdoor festival, this unique law was the first in Australia and means those who supply these illegal drugs might face legal charges if someone dies because of them.

New South Wales (NSW) harshly prosecutes this offence to demonstrate its dedication to combating drug-related harms or death. The NSW justice system targets the supply chain to protect individuals and uphold public safety, while also sparking discussions on its effectiveness and potential unintended consequences.

Criminalisation after Tragedy

At the Knockout Outdoor music festival in Sydney Olympic Park, a tragic event resulted in the deaths of two individuals, including a 21-year-old male attendee who collapsed at a hotel and could not be revived. Following the death, NSW police arrested a 23-year-old Victorian man, Trong Ha Nguyen, at Sydney Airport while he was attempting to board a flight back to Melbourne. Nguyen was found with $13,535 in cash, and charged with supplying a self-administered prohibited drug causing death.

Initially, Nguyen faced charges under the newly introduced section 25C of the Crimes Act 1900 (NSW). However, this first charge was subsequently dropped because the police had not obtained the necessary approval from the Director of Public Prosecutions (DPP). The matter was re-heard, during which two additional charges of supplying a prohibited drug were laid.

This case represents a potential first prosecution under section 25C, which was introduced in 2018 following previous drug-related deaths at music festivals, notably those of Joshua Tam and Diana Nguyen at the Defqon.1 music festival. The introduction of this drug offence has been met with criticism from legal entities, including the Law Society, which argues that it may create undue liability for drug suppliers and disproportionately impact low-level dealers.

Legal Elements of the Offence

For the court to convict you under section 25C of the Crimes Act 1900 (NSW), the prosecution must establish certain facts beyond a reasonable doubt. These include:

• Supplying a prohibited drug
• Causing death through recklessness

Supplying a Prohibited Drug

The prosecutor must prove that the accused supplied a prohibited drug to another person for financial or material gain. Supplying encompasses actions such as selling, distributing, or participating in the supply chain.

The drug involved must be listed under Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), which includes substances like:

• Heroin, 
• Cocaine, 
• 3,4-Methylenedioxymethamphetamine (MDMA) also called ecstasy (tablet form) or molly (crystal form), and
• Ketamine

Additionally, the prosecution must prove that the drug was self-administered by the victim, meaning the individual who received the drug consumed it voluntarily.

Causing Death Through Recklessness

The prosecution must also prove the following:

• The self-administration of the drug caused the victim’s death, and
• The accused acted recklessly by disregarding a significant risk of death arising from supplying the drug.

Recklessness refers to situations where the accused knew — or should reasonably have known — that drug supply could lead to such consequences. It involves ignoring foreseeable dangers associated with the action.

What is a Prohibited Drug Under NSW Law?

Prohibited drugs are substances that are illegal to possess, supply, manufacture, or use without appropriate authorisation. These drugs are classified based on their potential for misuse, harm, and the need for regulation under the Drug Misuse and Trafficking Act 1985 (NSW).

Common prohibited drugs include:

• MDMA (Ecstasy): A synthetic drug known for its psychoactive effects, often used recreationally at music festivals.
• Cocaine: A powerful stimulant that can lead to severe health issues and addiction.
• Heroin: An opioid that is highly addictive and poses significant risks of drug overdose and death.
• Methamphetamine: A potent central nervous system stimulant associated with violent behaviour and long-term health problems.

These substances are commonly misused and have high potential for addiction and serious health consequences, making their regulation critical.

Legal Classification and Definitions

Under the Drug Misuse and Trafficking Act 1985 (NSW), prohibited drugs are categorised in Schedule 1, which outlines various substances deemed illegal due to their potential for abuse and harm. The classification considers factors such as the drug’s ability to induce dependence, its medicinal value, and the severity of harm it can cause.

• Schedule 1: Includes drugs like heroin, cocaine, ecstasy, ketamine, and amphetamines. These substances have no recognised medicinal use and a high potential for abuse.

The classification under Schedule 1 has significant implications for suppliers, as it defines the legal boundaries and penalties associated with the distribution and sale of these drugs. Suppliers found guilty of handling Schedule 1 substances face severe legal repercussions, including lengthy imprisonment.

Possible Penalties for Supplying a Prohibited Drug Causing Death

Supplying a Prohibited Drug Causing Death is classified as a strictly indictable offence, meaning it must be heard in the District Court of NSW. If the court finds an accused guilty, it could prefer a maximum sentence of 20 years imprisonment. The steep punishment under section 25C of the Crimes Act 1900 (NSW) aims to deter individuals from engaging in the drug supply chain. 

Sentencing Factors

Several factors influence the judges’ sentencing decisions for a section 25C of the Crimes Act 1900 (NSW) violation. Key considerations include:

• Quantity of a Prohibited Drug Supplied: A larger quantity of drugs may indicate a significant role in the drug trafficking and can lead to harsher penalties.

• Offender’s Role in the Supply Chain: Principal figures in the distribution network, such as suppliers and traffickers, are likely to receive more severe sentences compared to low-level dealers.

• Aggravating Circumstances: These include the offender’s awareness of the drug’s potential lethality, involvement in organised crime, and any prior criminal history. Due to these circumstances, the judge could enhance your penalties.

• Economic Gain: The financial or material benefit derived from the drug supply can influence the severity of the punishment.

• Victim Vulnerability: Supplying drugs to vulnerable populations or in contexts where overdose risks are heightened can result in increased penalties.

The court evaluates these factors to determine an appropriate sentence, ensuring that the punishment aligns with both the gravity of the drug offence and the offender’s level of culpability.

Legal Defences to the Offence

Several legal defences exist to fight charges preferred under section 25C of the Crimes Act 1900 (NSW). The defendant should consider retaining an experienced criminal defence attorney to help with evaluating circumstances surrounding the case and building solid defence strategies. Examples of defences include:

Authorised Supply Defence

In certain circumstances, supplying a prohibited drug may be lawful. For example, medical professionals authorised under the Poisons and Therapeutic Goods Act 1966 (NSW) are permitted to supply controlled substances for therapeutic purposes. This defence applies when the supply is conducted within the bounds of the law and for legitimate medical reasons.

Challenge on Recklessness

A crucial element for conviction the prosecution must demonstrate is that the accused was reckless regarding the significant risk of death associated with supplying the prohibited drug. To defend against this, the accused can demonstrate that they did not foresee the risk or that their actions did not meet the legal definition of recklessness. This may involve presenting evidence that reasonable precautions were taken to prevent harm.

Lack of Supply

The accused can argue that they did not supply the drug, negating one of the essential elements required for conviction. For this defence to hold, the defendant must demonstrate beyond doubt that they had no control over the drug or that they never intended to transfer possession or control to someone else. Evidence such as lack of physical handling or absence of intent to supply can support this defence.

Causation Issues

A defence based on causation involves arguing that the drug use was not the sole or substantial cause of the victim’s death. This can be established by introducing evidence that other factors contributed significantly to the death, thereby breaking the chain of causation required for the offence. For instance, if the victim had underlying health conditions, these could be presented as contributing factors.

Lack of Recklessness

The accused may claim that they were not aware of the risk of death associated with supplying the prohibited drug. This defence requires demonstrating that the accused did not know or ought not to have known that their actions could lead to death. Providing evidence of due diligence or lack of knowledge about the drug’s potential effects can support this argument.

Duress

Duress is a defence where the accused was forced or threatened to supply the drug under the threat of harm. To establish duress, the accused must show that they were subject to an immediate threat of serious injury or death. They must also show that they had a reasonable belief that the threat would be carried out, and that they had no reasonable opportunity to escape the situation. The defence of duress acknowledges that the accused’s actions were not entirely voluntary.

Conclusion

The statute punishing the supply of prohibited drugs causing death is a stringent legal measure designed to deter drug-related fatalities. A conviction carries severe penalties, such as up to 20 years imprisonment. This legislation demonstrates the New South Wales government’s commitment to addressing the serious consequences associated with the illicit drug supply chain.

However, the broad scope of this offence has sparked significant debate, with criticisms highlighting its potential to disproportionately impact low-level dealers while possibly failing to effectively reduce drug-related harms. This ongoing discussion emphasises the need for a balanced approach that integrates harm reduction strategies alongside robust enforcement measures to ensure both public safety and the mitigation of unintended negative consequences. Contact us today for specialised clarification, and to equip yourself with experienced legal representatives. 

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