Drug Misuse and Trafficking Act 1985

(NSW) Offences

Introduction to drugs

• Prohibits the cultivation, manufacture, supply and possession and use of certain drugs.

Prohibited Plants

• The cultivation, supply or possession of prohibited plants is an offence under s 23(1) which carries a penalty (on indictment) of 10 years imprisonment where the offence involves less than a commercial quantity and relates to cannabis plant/leaf. 

Manufacture

• Section 24 – Manufacture and production of prohibited drugs• An offence under s24(1) to manufacture, produce or knowingly take

part in the manufacture or production of a prohibited drug – carries a penalty (on indictment) of 15 years – when contains less than a commercial quantity. s32(1)

• Section 24A – Possession of precursors for manufacture or production of prohibited drugs

• - An offence to possess precursors intended for use in the manufacture or production of prohibited drugs – The penalty for the offence is 10 years imprisonment.

Supply• Section 25 – Supply of prohibited drugs• Supplying or knowingly taking part in the supply of prohibited drugs is an offence

under s 25(1) which carries a penalty of 10 years imprisonment – less than a commercial quantity, relating to cannabis plant/leaf.

• Other cases not relating to cannabis plant/leaf is a penalty of 15 years under s 32(1)• Supplying or knowingly taking part in the supply of not less than a commercial

quantity is an offence under s 25(2) which carries a penalty of 15 years imprisonment.

• It is a specific offence under ss 25(1A) and 25(2A) for a person of or above the age of 18 to supply, or knowingly take part in the supply of, a prohibited drug to a person under the age of 16 – The penalties for these offences are the same but increased by one-fifth (S 33AA)

Offering or agreeing to supply:

• The objective seriousness of any activity falling within “supply” must depend on the particular evidence in the case

• There is no reason in principal why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply.

Conspiracy offence

• Section 26 – Conspiracy offence • It is an offence under s 26 to conspire with another

person or persons to commit an indictable offence under Pt 2 Div 2.

Supplying to undercover police

• “[o]f itself this is usually unlikely to lead to other than a very minor diminution of culpability”

• Whether the drugs will be disseminated into the community or not

Factors relevant to objective seriousness

Type of Drug:

•The Drug Misuse and Trafficking Act adopts a quantity-based penalty regime in schedule 1.

•It makes no other distinction between drug types

Role of Offender and level of participation:

•It is more important in determining a sentence than the quantity of drugs involved.•For supply offences, an offender’s role is determined by assessing what his or her involvement was in steps taken to effect supply.•Whether the offender is a principal offender, or a lesser role such as courier or storeman•An offender who combines the role of a principal and leader of an extensive and well organised network, distributing large commercial quantities of prohibited drugs, exhibits criminality of a high order (R v Kalache 2000)

Factors relevant to subjective seriousness

Good Character:•Carries less weight in offences involving drugs than many other offences.

Case Law

• Case Law:• Vu v R – Hall J set out the following factors relevant to determining

the objective seriousness of an offence under s 25(2) involving an offer to supply.

• R v Shi [2004] NSWCCA 135 – Other Factors relevant to objective seriousness – The unusually high level of purity in methylamphetamine 84.5% was considered an aggravating factor.

•  • Markarian v The Queen (2005) – High Court Held that the Court of

Criminal Appeal placed too much focus on the quantity of the drugs, without regard to the case facts.