Penalties for Drug Offences under the Drug Misuse and Trafficking Act 1985 (NSW)

This Drug Misuse and Trafficking Act 1985 (NSW) (‘the Act’) is a piece of legislation which applies to offences allegedly committed in the state of New South Wales.

The Act prescribes maximum penalties in terms of prison time, as well as penalty units – which are also known as fines.

A penalty unit is equivalent to $110.

The court retains discretion to impose any one of a number of other penalties, including:

• A ‘non-conviction order’, such as a complete dismissal under section 10(1)(a) or a good behaviour bond without conviction by way of a conditional release order,
• A community correction order,
• An intensive correction order.

A table containing the weights categories that apply to each prohibited drug follows the list of penalties.

Summary, Table and Strictly Indictable Offences

The offences in the Act are broken up into: summary offences, Table 2 offences, Table 1 offences 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.

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:

Section of Act	Offence
10	Possession of prohibited drugs (or drug possession)
11	Possession of equipment for administration of prohibited drugs
11A	Sale, supply and display of waterpipes ice pipes
11B	Possession of tablet press or drug encapsulator
11C	Possession of instruction for manufacture or production of prohibited drugs
12	Self-administration of prohibited drugs
13	Administration of prohibited drugs to others
14	Permitting another to administer prohibited drugs
15	Forging prescriptions
16	Obtaining prescription by false representation
17	Obtaining prohibited drug by false representation
18	Obtaining prohibit drugs from medical practitioners, nurses or midwives
18A	Advertising or holding out that premises are available for use for unlawful administration of prohibited drugs
18B	Manufacture, production, possession or supply of certain Schedule 9 substances
19	Aiding or abetting the commission of offence in NSW
20	Aiding or abetting the commission of offence outside NSW

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.

Section of Act	Offence
23(1)	Cultivating, supplying or possessing a prohibited plant
23A(1)	Cultivating a prohibited plant by enhanced indoor means and exposing a child to that process or substances stored for use in the process
24(1)	Manufacturing or producing a prohibited drug
24(1A)	Manufacturing or producing a prohibited drug and exposing a child to that process or substances stored for use in the process
25(1)	Supplying a prohibited drug
25(1A)	Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years
25(2C)	Adult procuring a person under the age of 16 years to supply a prohibited drug (other than cannabis leaf)
26	Conspiring to commit an offence above
27	Aiding or abetting an offence above
28	Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW

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.

Section of Act	Offence
23(1)	Cultivating, supplying or possessing a prohibited plant
23A(1)	Cultivating a prohibited plant by enhanced indoor means and exposing a child to that process or substances stored for use in the process
24(1)	Manufacturing or producing a prohibited drug
24(1A)	Manufacturing or producing a prohibited drug and exposing a child to that process or substances stored for use in the process
25(1)	Supplying a prohibited drug
25(1A)	Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years
25(2C)	Adult procuring a person under the age of 16 years to supply a prohibited drug (other than cannabis leaf)
26	Conspiring to commit an offence above
27	Aiding or abetting an offence above
28	Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW

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:

Section of Act	Offence
23(1)	Cultivating, supplying or possessing a prohibited plant
24(1)	Manufacturing or producing a prohibited drug
25(1)	Supplying a prohibited drug
25(1A)	Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years
26	Conspiring to commit an offence above
27	Aiding or abetting an offence above
28	Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW

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:

Section of Act	Offence
23(1A)	Cultivating not less than the small quantity but less than the commercial quantity of prohibited plants by enhanced indoor means for a commercial purpose
23(2)	Cultivating, supplying or possessing a commercial quantity of prohibited plants
24(2)	Manufacturing or producing a commercial quantity of prohibited drugs
25(2)	Supplying a commercial quantity of prohibited drugs
25(2A)	Adult supplying a commercial quantity of drugs to a person under the age of 16 years
26	Conspiring to commit an offence above
27	Aiding or abetting an offence above
28	Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW

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:

Section of Act	Offence
25(1A)	Adult supplying, or knowingly taking part in the supply of, a prohibited drug to a person under the age of 16 years
25(2A)	Adult supplying, or knowingly taking part in the supply of, a commercial quantity of prohibited drug to a person under the age of 16 years
26	Conspiring to commit an offence above
27	Aiding or abetting an offence above
28	Conspiring to commit, or aid or abet, an offence equivalent to the above outside NSW

The section prescribes the following maximum penalties:

Where the maximum penalty is 2 years in prison	2 years and 6 months
For commercial supply under section 25(2A)	25 years in prison and/or 4200 penalty units
In any other case	Maximum term of imprisonment and penalty units increase by one-fifth

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:

Section of Act	Offence	Penalty
24A	Possessing drug precursor or drug manufacture apparatus with intent to manufacturing a prohibited drug	10 years in prison and/or 2000 penalty units
24B	Possessing a prescribed quantity of drug precursor	5 years in prison and/or 1000 penalty units

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:

Section of Act	Offence	Penalty
24(1A)	Manufacturing or producing a prohibited drug and exposing a child to that process or substances stored for use in the process	18 years in prison and/or 2400 penalty units
24(2A)	Manufacturing or producing a commercial quantity of a prohibited drug and exposing a child to that process or substances stored for use in the process	25 years and/or 4200 penalty units, or life in prison and/or 6000 penalty units for large commercial quantities
25(2C)	Adult procuring a person under the age of 16 years to supply a prohibited drug (other than cannabis leaf)	18 years in prison and/or 2400 penalty units
25(2D)	Adult procuring a person under the age of 16 years to supply a commercial quantity of prohibited drug (other than cannabis leaf)	25 years and/or 4200 penalty units, or life in prison and/or 6000 penalty units for large commercial quantities

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:

Section of Act	Offence	Penalty
23A(1)	Cultivating a prohibited plant by enhanced indoor means and exposing a child to that process or substances stored for use in the process	12 years in prison and/or 2400 penalty units
23A(2)	Cultivating a commercial number of prohibited plants by enhanced indoor means and exposing a child to that process or substances stored for use in the process	18 years in prison and/or 4200 penalty units
23A(3)	Cultivating not less than the small quantity but less than the commercial quantity of prohibited plants for a commercial purpose and exposing a child to that process, or to substances stored for use in the process	18 years in prison and/or 4200 penalty units, or 24 years in prison and/or 6000 penalty units for large commercial quantities

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.

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