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Drug Offence Lawyers
Understanding NSW Drug Laws
Whether it's at a music festival, on the street, or in someone's home, drug offences are taken very seriously in New South Wales. But for many people, it's not always clear what counts as a drug offence, how serious the consequences can be, or what your rights are if you're arrested.
Whether you're trying to understand the law, help someone you care about, or just want to stay informed, you'll find what you need here.
In NSW, drug offences are primarily dealt with under the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). These offences fall into an array of categories, depending upon the circumstances of the charge.
New South Wales
Types of Drug Offences
Possession
It is an offence for a person to have a prohibited drug in their possession.
A prohibited drug is any substance specified in Schedule 1 of the Act. The prohibited drug must have been found in your custody and/or control.
It's not just about physically holding the drugs – if they are in a place you control, and you know about them, that counts.
Before being found guilty, it must also be demonstrated that you knew that you had those drugs in your custody and/or control, or at least you should reasonably have known.
For example, if drugs are found in your bedroom, in a home which you have exclusive access to, it may be inferred that you knew they were there.
If, for example, the drugs were found in a common room of a share house, it must be proven that you held exclusive possession of that drug to the exclusion of all other persons in the property. This is what is commonly referred to as the "Filippetti defence'. If such a defence is raised, the prosecution then must exclude the possibility that one or more other persons in the share home possessed the drug, rather than the accused person beyond reasonable doubt.
Use or Administration
Possess of Drug Paraphernalia
Supplying a prohibited drug
Supplying a prohibited drug is a very serious offence in New South Wales, and the penalties can be severe. What many people don't realise is that the definition for supply is quite broad and it does capture a lot of behaviour which you may not consider as a supply.
Under section 3 of the Act, "supply" includes a wide range of conduct, and not just selling. It includes:
- To sell and distribute,
- Agreeing to supply,
- Offering to supply,
- Keeping or having in possession for supply,
- Sending, forwarding, delivering or receiving for supply,
- Authorising, directing, causing, suffering, permitting or attempting any of the above acts or things.
You don't need to be caught handing drugs over to be charged with the supply of a prohibited drug.
If the police find a certain quantity of drugs in your possession, they may charge you with a "deemed supply".
What is a deemed supply?
If you're caught with more than a "traffickable quantity" of a prohibited drug, the law presumes you were planning to supply it – unless you can prove otherwise.
This is called "deemed supply".
Each prohibited drug has different threshold amounts. These determine how the offence is categorised and how serious the penalty may be.
Being charged with a drug supply offence is a big deal, even if it started with something casual like sharing a few pills with friends. The law relating to the supply of drugs in NSW treats all supply offences very seriously, and the consequences may be life-changing.
It's also true that every case is different, and the court looks at the full picture - especially with first time or low-level supply. With the right legal help, there are often real options to reduce the charge, avoid a conviction, or in some circumstances, keep you out of gaol.
Drug Manufacture
Manufacturing prohibited drugs in NSW is a heavily penalised offence. Even small-scale DIY set ups can lead to life-changing consequences, including gaol, a criminal record, and serious impacts to your family, work, and future.
The offence of manufacturing a prohibited drug is dealt with by section 24 of the Act. It includes the process of extracting or refining the prohibited drug. This includes acts such as extracting drugs from plants or chemicals, mixing ingredients, converting drugs into another form, and using equipment and/or chemicals for drug production.
To be found guilty of an offence of manufacturing drugs, the prosecution must demonstrate, beyond reasonable doubt that:
- You manufactured the drug, or
- You produced a prohibited drug, or
- You knowingly took part in either one of the above two.
Drug offences in NSW are more common than people realise, but that doesn't mean they aren't serious. Whether it's a joint, a pill, or something more significant, the consequences can stick with you long after the night is over.
If you or someone you care about has been charged, don't wait, get legal advice straight away. There are often options available, especially for first-time offenders.
Every case is different. A criminal lawyer can help you understand your rights, build your defence, and fight for the best possible outcome. Whether it's avoiding a conviction, reducing the penalty, or getting the charge dropped entirely.
Contact us!
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Drug Offences Frequently Asked Questions
What constitutes "possession" of a prohibited drug?
To establish an offence of drug possession under section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), the Prosecution must prove three key elements beyond reasonable doubt:
- Physical Custody or Control: You had the substance on your person or in a place you controlled (such as your car or home).
- Knowledge: You knew, or should have known, that the substance was present and that it was a prohibited drug.
- Nature of the Substance: The substance is indeed a prohibited drug or plant specified in the Act, such as MDMA, cocaine, cannabis, or ice.
What is the "Deemed Supply" law?
In NSW, "deemed supply" is a legal presumption under section 29 of the Drug Misuse and Trafficking Act 1985. If you are found in possession of a "traffickable quantity" of a drug, the law presumes you intended to supply it unless you can prove otherwise. This shifts the burden of proof to the accused, who must prove on the balance of probabilities that the drugs were for personal use only.
What are the common "traffickable quantities" in NSW?
The weight threshold for deemed supply varies significantly by drug type. If you are found with weights above these amounts, you will likely be charged with supply rather than simple possession:
- Cannabis (leaf): 300 grams.
- Cocaine: 3 grams.
- Ecstasy (MDMA): 0.75 grams.
What are the maximum penalties for drug offences?
Penalties in NSW are determined by the quantity and type of drug involved, as well as the Court in which the matter is finalised. It’s important that you speak with an expert criminal defence lawyer to discuss what type of penalties you may face.
Can I avoid a criminal record for a drug charge?
Yes, it is possible through a "Section 10" dismissal or a Conditional Release Order (CRO) without conviction. The Court has the discretion to find you guilty but choose not to record a conviction on your record, considering factors like the "trivial" nature of the offence, your previous good character, and any extenuating circumstances. This may not be available for larger quantities of illicit drugs.
What is the MERIT program?
The Magistrates Early Referral Into Treatment (MERIT) program is a 12-week voluntary scheme designed for adult defendants with drug problems. It allows you to work toward rehabilitation while your matter is still before the Court. Successful completion is a significant mitigating factor during sentencing.
What should I do if the Police want to search me?
While Police have powers to search you if they have "reasonable suspicion," you should remain polite but state clearly, “I do not consent to a search.” This protects your legal position if the search is later found to be unlawful. Exercise your right to remain silent and do not answer questions until you have received legal advice.
Are there valid defences to drug charges?
Several legal and factual defences may be available:
- Lack of Knowledge: You were genuinely unaware of the drug's presence (e.g., left by a passenger).
- Personal Use (for Deemed Supply): Proving the amount was intended solely for your own consumption.
- Duress: You were coerced or threatened with immediate serious harm into possessing or supplying the drugs.
- Unlawful Search: Evidence may be ruled inadmissible if Police violated your rights.
- Carey defence: You were temporarily in possession of someone else’s drugs and intended to return them to the owner.
Can my "Supply" charge be downgraded to "Possession"?
This is a common outcome when handled by an experienced lawyer. By negotiating with the Prosecution and presenting evidence—such as an absence of scales or cash and admissions of personal addiction—we can often have serious supply charges withdrawn in exchange for a plea to simple possession.
Why do I need a specialist drug lawyer?
Drug law in NSW is complex with rigid quantity thresholds. A specialist lawyer understands the nuances of the Drug Misuse and Trafficking Act, knows how to challenge search legality, and can advocate for alternative sentencing options like the Drug Court or rehabilitation.