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Home Blog Drug Offences in New South Wales (NSW)

Drug Offences in New South Wales (NSW)

The law for drug offences prohibit the following actions with prohibited drugs;

The law that details these actions, and stipulates penalties for offenders is the Drug Misuse and Trafficking Act 1985.

It also extensively covers all Drug Driving offences, especially for prohibited substances. Some of these prohibited drugs include; Cannabis (Marijuana), heroin, ecstasy, amphetamines, LSD, Cocaine, Methadone, other common street drugs, including their cliché names and others.

Drug offences that result in a court conviction are disclosed on an individual's national criminal history check result in accordance with the rules of the Spent Convictions Scheme.

What are the various behaviours that constitute a Drug Offence?

The court can convict you for various Drug offences as long as it concludes from evidence that you participated in the act with the prohibited drugs.

Some of these acts are;

Drug possession

Without a medical or legal prescription, it is an offence to be found "possessing" an amount of a prohibited drug. It also includes drugs like Cannabis and Methadone, irrespective of public opinions of the many benefits.

However, it is not an offence if you possess a small quantity of the prohibited drug inside a licensed medically supervised learning centre.

  1. Proving Possession;

The prosecutor must prove to the court that the offender was in "possession" of the drug. Under the Act, there are three elements important for this proof;


  1. What are the penalties for Drug Possession?

The crime of drug possession is a summary offence when it is for personal use. And it was dealt with in a Local Court or a Children's court.

Under Section 21 of the Act, the court can impose penalties up to;

However, the penalties can be less severe, depending on the; drugs, quantity or prior records or nature surrounding the crime. Other possible penalties can be;

However, if you are caught with large amounts of the drugs, the court will conclude that you possess the drug for the sake of supply or trafficking. The court will then order higher penalties it deems appropriate.

Drug Use offences

It is an offence under any circumstance to administer or attempt to either yourself or another. It remains illegal even when the person grants consent to administer the drugs (injections). It also doesn't matter if the drug was prescribed or not prescribed, as long as you violate the terms and directions of use.

Therefore, it is an offence to administer drugs such as; Codeine, Dexamphetamine, Valium, buprenorphine, or methadone without a physician nearby or following the dosage prescribed.


  1. In Licensed Medical Facilities

It is not an offence to possess small amounts of these drugs (prescribed) within a licensed medically supervised injecting centre. However, you may be charged outside the facility.


  1. What are the penalties for Drug Use offences?

If you are charged before the court for drug usage, the court will impose penalties up to;


Drug usage involves any of these actions; swallowing, snorting, injecting, smoking or otherwise using a prohibited drug.


Obtaining an illegal Drug

It is an offence in NSW to obtain or attempt to obtain prescription drugs by lying or making false representations, including by forging or altering a prescription.

Maximum penalty: $2200 and/or imprisonment for 2 years.

Supply of a prohibited Drug

If you are caught attempting to or supplying a prohibited drug without lawful authority, you will be charged and convicted appropriately. The penalties for supplying a prohibited drug differs, depending on the quantity and other factors the court deems relevant.

The offence of Supplying a prohibited drug includes;


The Police may even change your offence of Drug possession to supply if you are caught with large quantities of the drug(s). It may also include elements like possessing;


If you are caught with more than the “trafficable quantity” of a drug, you may be charged with “deemed supply”. It is up to you to prove that the drugs in your possession are not for supply; they were for your use, or you were simply going to return them to their owner.

If you are caught dealing with an undercover police officer, you cannot rely on a defence of “entrapment” unless the police have induced you to commit an offence that you wouldn’t otherwise commit.

Most drug supply charges are dealt with in a Local Court (Summary offences), especially if they involve less than the indictable quantity.

However, the prosecution can choose to charge the matter in a District court (involving a judge and jury). Drug supply offences for indictable quantities are heard in a District Court or commercial quantities at the Supreme Court. Such matters will involve a judge and a jury.


  1. Supply offences involving a prohibited drug other than cannabis

  1. Supply offences involving cannabis;

The offence of Manufacture and Cultivation of Prohibited Drugs

It is an offence to manufacture or take part in the manufacture of a prohibited drug without legal authority. It involves extracting, refining the drug from another substance or plant.

Cultivation of prohibited plants is also a serious offence. Cultivation acts include:

Other actions like watering the plant or fertilising it will likely be considered cultivation.


  1. Penalties for Manufacture and Cultivation of prohibited Drugs

The maximum penalties for cultivation or manufacture are similar to those for drug supply offences. It also depends on the type and quantity of drug involved, the offender's role, which court is dealing with the case and whether children were exposed to the cultivation or manufacturing process.

If you are caught in possession of precursors, the police must establish your intention to use the precursor to manufacture prohibited drugs.

Manufacture or cultivation offences involving a prohibited drug other than cannabis


  1. Manufacture or cultivation offences involving cannabis

Drug Offences involving Children

Sections 23A, 33AC and 33AD of the Act outline that Selling, supplying, trafficking, manufacturing or cultivating prohibited drugs around children is a much more serious crime and results in much higher penalties. The child is never blamed or charged for being involved with drugs or controlled plants.

Supplying a controlled drug to a child under 16 years old is an offence with penalties of up to 25 years imprisonment, depending on the circumstances.

Cannabis Caution Scheme

The Police officer may issue a warning instead of a Court summons or Penalty Notice for certain “lesser” Drug offences. Other details regarding the program are governed under the Cannabis Cautioning Scheme (CCS).

An offender can receive a warning where;

Do drug offences in NSW show up on a police check?

Where the offence results in conviction from an Australian court of law, the offence will show up on an individual’s national police check NSW.

The offence is disclosed in accordance with the spent convictions legislation of NSW.

Applicants can obtain their national criminal background check online from the ANCC website.

Wrapping Up

The NSW laws view the penalty Notice scheme and the Cannabis cautioning scheme as discretionary alternatives to a conviction or sentencing. However, these are not available for aggravated offences or serious drug offences.

The NSW courts also deal with other Drug offences under the related laws

Sources

Drug Misuse and Trafficking Act 1985 - http://classic.austlii.edu.au/au/legis/nsw/consol_act/dmata1985256/

Cannabis Cautioning Scheme (CCS) - https://www.bocsar.nsw.gov.au/Publications/General-Series/r54.pdf

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