In the news this week – a New South Wales man has confessed to trading cocaine for secret and unlawful access to a gym to work out during the Sydney Covid-19 lockdowns.
Police arrested the man after an investigation that included surveillance and the interception of more than 25,000 text messages and phone calls. He was charged with two counts of prohibited drug supply, one count of possessing prescribed restricted substances and two counts of possessing prohibited drugs.
Police have alleged in their statement of facts tendered in court that they believed a gym owner accepted bags of cocaine from the accused man in return for secret access to a gym during lockdowns, when all gyms were closed under public health orders.
Supply of drugs doesn’t just refer to the ‘sale’ of drugs
Most people understand that ‘drug possession’ charges typically relate to a person having a drug in their possession or under their control – for example, in a pocket, handbag, or within their car or home.
The definition of ‘supply’, on the other hand, is much broader. It doesn’t always mean simply: ‘selling’ drugs.
Under the law, ‘drug supply’ can also mean giving away for free, swapping for goods or services, distributing, agreeing to supply, offering to supply, as well as having drugs in your possession for supply. Drug supply can also be ‘deemed’ – that is, if a person has possession of a larger quantity of drugs, they can be ‘deemed’ to be supplying simply because of the quantity in their possession. At the local court lawyers, we find this often happens when festival-goers start the festival with enough drugs to last them for the multi-day event, but if detected early, they can be charged with drug supply simply because of the quantity they have. For example, anything over 3g of cocaine is ‘deemed’ supply. The same applies for someone growing multiple cannabis plants – grow a few plants and its charged as cultivation for personal use; grow a lot of plants and its deemed cultivation for supply (or a trafficable or commercial quantity). It all depends on the type of drug and how much of it the defendant has, or controls.
In the case mentioned above, the man pleaded guilty to all of the drug charges and was sentenced to a 21-month intensive corrections order with supervision, 150 hours of community service and a $3300 fine. He is also required to continue with psychological treatment and drug rehabilitation.
Which court will hear the matter?
In New South Wales, the judicial process related to drug possession and supply depends on the quantities and type of drugs involved.
Supply charges can be dealt with in the Local or District Court, depending on the amount (weight/number of pleants) of the drugs involved, and what type of drugs were involved. ‘Prohibited plants and drugs’ are listed in the Drug Misuse and Tracking Act 1985, Schedule 1.
The role of the Local Court
Possession of a prohibited drug is a summary offence that will be dealt with in the Local Court, no matter what the type or weight of the drug. If the local court decides that a conviction is necessary for possession charges, then the offence carries varying penalties but generally the maximum penalty is around $2,200 and/or 2 years imprisonment and may include a bond such as a conditional release order, a community corrections order or an intensive corrections order.
Cannabis Cautioning Scheme
In New South Wales, police have the discretion to caution people for possession of cannabis (15 grams or less). The idea behind the Cannabis Cautioning Scheme is that it will divert some cases away from the local courts, freeing up court time and resources. Only two cautions can be given to any person and the scheme cannot apply to anyone who is found to be growing or supplying cannabis, or to anyone with a prior conviction for drug offences.
It can not be applied to anyone who has a prior conviction for a violent or sexual offence either.
In cases where the offender is an addict there are sentencing orders available to the court to ensure that the accused person receives treatment for the addiction.
The MERIT programme
One of these diversionary programs is the Magistrates Early Referral into Treatment (MERIT) program, which aims to stop reoffending by breaking the cycle of addiction.
The MERIT program was developed and introduced into New South Wales in response to recommendations made by the 1999 NSW Drug Summit, an initiative of the New South Wales Government.
In the year 2000, the program was piloted in five courts in the Northern Rivers area, with the program itself, run from Lismore. Such was the success of the pilot that the MERIT program is now offered in 61 Local Courts across New South Wales, and in some areas (like Coffs Harbour) a MERIT program treats alcohol, not only drugs.
This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.
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