What the law states

Section 25 of the Drug Misuse and Trafficking Act 1985 (NSW) states that:

(1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence.

(2C) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence.

The severity of these offences is determined by the quantity that is supplied.

Example of this offence

A common example of this offence is an older brother or sister giving their 15 year old sibling a bag of ecstasy for the sibling and his or her 15 year old friends.

In which court will my matter be heard?

Offences including supply of prohibited drugs to minors fall under Part 2, Division 2 of the Drug Misuse and Trafficking Act 1985 (NSW). This means that these offences are considered indictable offences, and are heard in the District or Supreme Court.

Indictable offences such as those outlined in subsections (1A) and (2C) can be dealt with summarily (in the local court) unless the prosecution elects otherwise. This is possible only if the quantity of the drug is not more than the small quantity specified in Schedule 1, Column 2 of the Drug Misuse and Trafficking Act 1985 (NSW). The offence can also be dealt with summarily if the amount is not more than the indictable quantity. The quantity constituting a small or indictable quantity varies for each type of drug. For more information, click here.

Defences

Defences to these offences include butare not limited to duress and necessity. A further defence is if the accused, at the time of the offence, could not have had reasonable cause to believe and did in fact believe that the person to whom they were supplying the drug to was above the age of 16 years, in which case they would be charged with supply to persons over 16 years of age.

Also, those licenced or authorised under the Poisons and Therapeutic Goods Act 1966 or somebody given authority by the Director General of the Department of Health are exempt from liability, or somebody acting in accordance with directions from the Commissioner of Police with regards to the use of prohibited plants and prohibited drugs in controlled operations and integrity testing programs are not liable.

Section 35A of the Drug Misuse and Trafficking Act 1985 (NSW) outlines a further defence, that it is not illegal to possess or manufacture a prohibited substance if the substance is contained in a product where the substance cannot be readily extracted, or in a product not for human consumption, or if the substance is possessed for the purpose of its disposal as waste or its destruction.

Penalties

The maximum penalties with regard to such supply offences are as follows:

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Supply in itself to minors: $462,000 fine or 24 years imprisonment or both. If the prohibited drug is cannabis, then the fine is $462,000 or 18 years imprisonment or both.
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Supply of a prohibited drug not less than a commercial quantity to a minor: $462,000 or 25 years imprisonment, or both.
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Procuring a minor to take part in the supply of a drug: $264,000 fine or 18 years imprisonment or both.
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Procuring a minor to take part in the supply of a drug, the quantity of which is not less than a commercial quantity: $462,000 fine or 25 years imprisonment or both.

Author Bio: Solicitor Emmanuel Apokis has many years experience in Criminal Law working with the experienced Sydney Criminal Lawyers at Prime Law.

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