What are the Penalties for Prohibited Drug Offences in New South Wales?

The main piece of legislation in New South Wales which facilitates the prohibition of drugs is the Drug Misuse and Trafficking Act 1985 (‘the Act’).

The main criminal offences contained in the Act are divided into two parts:

1. Summary offences – which are those finalised in the Local Court, and
2. Indictable offences – which are those which may be finalised in the Local or a higher court such as the District Court (these are called ‘Table 1’ and ‘Table 2’ offences), and those which must be finalised in a higher court (these are known as strictly indictable offences).

Summary, Table and Strictly Indictable Offences

Summary drug offences are generally the least serious.

‘Table’ offences are so called because they are listed in Tables 1 and 2 of schedule 1 of the Criminal Procedure Act 1986 (NSW), which is titled ‘’Indictable offences triable summarily’.

Table 2 offences are generally more serious that summary offences.  For these, the prosecution can ‘elect’ (choose) to ‘commit’ (refer) the case to a higher court, which is usually the District Court.

Table 1 offences are generally more serious than Table 2 offences. For these, the prosecution or defence can elect to commit the case higher court.

The most serious state drug offences are strictly indictable offences which, as stated, must be finalised in a higher court.

Factors that determine the maximum penalty

The maximum penalties that apply to these offences depend on the type and weight of the drug concerned, as well as the court in which the case is finalised; specifically, whether the case remains in the Local Court or is referred to and finalised in a higher court.

Penalties that apply under the Act

Here’s a rundown of the maximum penalties that apply under the Act.

The relevant weight categories for all prohibited drugs are listed in the table at the end of this article.

A penalty unit is $110 at the time of writing.

Summary offences

Part 2, Division 1 lists the Act’s summary drug offences.

Section 21 of the Act prescribes a maximum penalty of 2 years in prison and/or 20 penalty units for each of the following offences, except an offence of possessing a Schedule 9 substance under section 18B(3) which carries a maximum of 12 months in prison and/or 20 penalty units:

Table 2 offences – when finalised in the Local Court

Section 30 of the Act prescribes a maximum penalty of 2 years in prison and/or 50 penalty units for the offences in the table below where:

1. The drug or plant is not more than the small quantity, and
2. The case is finalised in the Local Court.

Table 1 offences – when finalised in the Local Court

Section 31 of the Act prescribes a maximum penalty of 2 years in prison and/or 100 penalty units for the offences in the table below where:

1. The drug or plant is not more than the indictable quantity, and
2. The case is finalised in the Local Court.

Offences finalised in a higher court

Section 32 of the Act prescribes a maximum penalty of 15 years in prison and/or 2000 penalty units, or 10 years and/or 2000 penalty units if the offence relates to cannabis, where the case finalised in a higher court such as the District Court:

Commercial quantities and cultivation for a commercial purpose

Offences relating to commercial quantities of prohibited drugs and plants are strictly indictable.

Section 33 of the Act prescribes these penalties:

Commercial quantity

For commercial quantities, the maximum penalty is 20 years and/or 3500 penalty units, or 15 years and/or 3500 penalty units if the offence relates to cannabis.

Large commercial quantity

For large commercial quantities, the maximum penalty is life in prison and/or 5000 penalty units, or 20 years and/or 5000 penalty units if the offence relates to cannabis.

The offences are:

Supplying drugs to persons under the age of 16 years

Section 33AA of the Act applies to the following offences of supplying a prohibited drug to person under the age of 16 years:

The section prescribes the following maximum penalties:

Possessing prohibited drug precursors – when finalised in a higher court

Section 33AB of the Act prescribes the following penalties for offences relating to drug precursors when the case is finalised in a higher court:

Manufacturing or producing prohibited drugs in the presence of or using children, or procuring children to supply them

Section 33AC of the Act prescribes the following penalties for offences which relate to the manufacture or production of prohibited drugs in the presence of children, or procuring children to supply drugs:

The same maximum penalties apply to conspiring to commit the above offences (section 26), aiding or abetting the above offences (section 27) or conspiring, or aiding or abetting, and equivalent offence that occurs outside NSW.

Cultivating prohibited plants in the presence of children – when finalised in a higher court

Section 33AD of the Act prescribes the following penalties for offences which relate to the enhanced indoor cultivation of prohibited plants in the presence of children where the case is finalised in a higher court:

The same maximum penalties apply to conspiring to commit the above offences (section 26), aiding or abetting the above offences (section 27) or conspiring, or aiding or abetting, and equivalent offence that occurs outside NSW.

What is a life sentence?

Section 33A of the Act makes clear that life in prison means ‘for the term of the person’s natural life’.

Categories of drug quantities

Schedule 1 of the Act contains a list of prohibited drugs and plants in New South Wales.

It is important to bear in mind that in our state, the weight of the ‘admixture’ is applicable for the purpose of determining weight; in other words, the total weight of the substance that contains the prohibited drug or plant.

So, for example, if one kilogram of ‘cut’ cocaine contains 200 grams of cocaine and 800 grams of fillers, the relevant weight of cocaine for the purposes of the Act is one kilogram.

Similarly, if 30 grams of cut cannabis contains 25 grams of cannabis and 5 grams of tobacco or another legal substances, the relevant weight is 30 grams of cannabis.