Drug Offences

Possession of Prohibited Drugs

Under section 10 of the Drug Misuse and Trafficking Act 1985, a person must not have in their possession a prohibited drug. ‘Possession’ is not defined by legislation; however, it has been shaped by judicial interpretation of this section over time. Generally, it means that you intentionally have physical control or custody of a thing AND knowledge that you have it in your custody or control. Possession of a thing can either be exclusive (only you) or joint (shared with one or more other people).

Maximum Penalty:

2 years imprisonment and/or a $2,200 fine.

Possession of Equipment for Administering Drugs

Under Section 11 of the Drug Misuse and Trafficking Act 1985, a person must have in their possession any item of equipment for use in the administration of a prohibited drug unless the equipment was lawfully prescribed, supplied or authorised by a licenced health professional.

Some examples of equipment used to administer drugs might be:

• A bong;
• A ice pipe
• Rolling paper
• A cocaine straw
• Empty drug capsules

Maximum Penalty:

Self-administration of Prohibited Drugs

Under section 12 of the Drug Misuse and Trafficking Act 1985, A person commits an offence if they administer a prohibited drug to themselves without lawful authority.

Maximum Penalty:

Prohibited Plants

Under section 23 of the Drug Misuse and Trafficking Act 1985, a person commits an offence if they cultivate, supply, or possess a prohibited plant. Prohibited plants include cannabis plants, plants of the genus Erythroxylon, and plants of the species Papaver somniferum, Papaver, and Papaver bracteatum. This may also include plants that can be used to grow prohibited plants.

Cultivate:

The word “cultivate,” in relation to a prohibited plant, includes sowing or scattering the seed, as well as planting, growing, tending, nurturing, or harvesting the prohibited plant.

Supply:

The word “Supply” in relation to a prohibited plant, includes to sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.

Possess:

“Possess” is not defined by legislation; however, it has been shaped by judicial interpretation of this section over time. Generally, it means that you intentionally have physical control or custody of a thing AND knowledge that you have it in your custody or control. Possession of a thing can either be exclusive (only you) or joint (shared with one or more other people).

Maximum Penalty:

Cannabis Caution Scheme (CCS)

The “Cannabis Caution Scheme” has been in place since 2000 and is operated by the NSW Police Force. A caution can be issued under the scheme at the discretion of a NSW Police officer. Police may exercise their discretion in appropriate cases; however, they may instead decide to formally charge offenders at their own discretion.

This scheme applies to the cautioning of adults detected using or in possession of small quantities (not more than 30 grams) of dried cannabis and/or in possession of equipment for the use or administration of cannabis. The scheme covers offences related to the use and possession of dried cannabis leaf, stalks, heads, and equipment for use. It does not include living plants or derived products such as hash, hash oil, or seeds, where seeds constitute the bulk of the drug content.

You are not eligible to be issues a caution if the following applies:

1. If you are found in possession of more than 30 grams of dried cannabis leaf;
2. If you are not an adult (over 18 years of age);
3. If the cannabis was not for personal use;
4. If there were other offences involved or detected at the time which required a brief of evidence to be prepared by NSW police;
5. There must be no prior convictions on your criminal record for any ‘serious drug offence’, unless the conviction is spent. Under the Criminal Records Act 1991, most minor criminal offences will be treated as spent after 10 years;
6. If the NSW police officer decides not to exercises their discretion to issue you with a caution.

Manufacture and Production of Prohibited Drugs

Under section 24 of the Drug Misuse and Trafficking Act 1985, a person commits an offence if they manufacture, produce or prepare a prohibited drug. “Manufacture” is defined under the legislation as the process of extracting or refining the prohibited drug.

Maximum Penalty:

Possession of Precursors for Manufacture of Prohibited Drugs

Under section 24A of the Drug Misuse and Trafficking Act 1985, a person commits an offence if they have possession of a precursor intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug. A precursor is an ingredient, substance or chemical that can be used alone or in combination with other ingredients or substances to manufacture a prohibited drug.

Some precursors specified under the legislation are as follows:

• Acetic anhydride
• Alpha-acetylphenylacetic acid
• Alpha-phenylacetoacetamide (also known as APAA)
• Alpha-phenylacetoacetonitrile (also known as APAAN)
• 4-Aminobutanoic acid (also known as Piperidinic acid)
• Anethole
• 4-Anilino-N-phenethylpiperidine (also known as ANPP)
• Boron tribromide
• Bromobenzene
• Bromosafrole
• 1,4-Butanediol (also known as Tetramethyelene glycol, hydroxybutanol or 1,4BD)
• 1-Chloro-1-phenyl-2-aminopropane (including salts)
• 1-Chloro-1-phenyl-2-methylaminopropane (including salts)
• Ephedrine (including salts)
• Ephedrone
• Ethyl phenyl acetate
• Gamma butyrolactone (also known as 4-hydroxybutanoic acid lactone or gBL)
• Hydriodic acid
• 4-Hydroxybutanal (also known as 4-Hydroxybutyraldehyde)
• 4-Hydroxybutanoic acid (including salts) (also known as Gamma hydroxybutyric acid)
• 4-Hydroxybutanoic acid nitrile (also known as 4-Hydroxybutyronitrile)
• 4-Hydroxypentanoic acid (also known as Gamma valerolactone)
• 2-Hydroxytetrahydrofuran (also known as Tetrahydro-2-furanol)
• Hypophosphite salts
• Hypophosphorous acid
• Methyl alpha-phenylacetoacetate (also known as MAPA)
• Methyl 3-(3’,4’-Methylenedioxyphenyl)-2-methyl glycidate (also known as MMDMG)
• 2-Methyl-3-(3,4-Methylenedioxyphenyl)prop-1-ylidenehydroxylamine (also known as helional aldoxime)
• 2-Methyl-3-(3,4-Methylenedioxyphenyl)propanamide (also known as helional amide)
• 3-(3’,4’-Methylenedioxyphenyl)-2-methyl glycidic acid (including salts)
• 3,4-Methylenedioxyphenylpropan-2-one (also known as 3,4-Methylenedioxy-phenyl-2-propanone)
• N-Methylephedrine
• Methyl phenylacetate
• Methyl 3-phenyl-2-methyl glycidate
• N-Methylpseudoephedrine
• Norpseudoephedrine
• N-Phenethyl-4-piperidone (also known as NPP)
• Phenylacetamide
• Phenylacetic acid (including salts and esters)
• Phenylacetonitrile
• Phenylacetyl chloride
• Phenylpropanolamine (including salts)
• 1-Phenyl-2-chloropropane
• 3-Phenyl-2-methyl glycidic acid (including salts)
• 1-Phenyl-2-nitropropene
• 1-Phenyl-1,2-propanedione
• 1-Phenyl-2-propanol
• 1-Phenyl-1-propanone (also known as Phenylethylketone, Propiophenone)
• 1-Phenyl-2-propanone
• 1-Phenyl-2-propanone bisulphite
• 1-Phenyl-2-propanone oxime
• Phosphorous acid (also known as Phosphonic acid)
• Phosphorus (red or white)
• Piperonal (also known as 3,4-Methylenedioxy-benzaldehyde or Heliotopine)
• Propionyl chloride
• Pseudoephedrine (including salts)
• Pyridine
• 2-Pyrrolidone (also known as Gamma butyrolactam)
• Safrole (also known as 5-(2-Propenyl)-1,3-Benzodioxide)
• Sassafras oil
• N-Acetylanthranilic acid (also known as 2-Acetamidobenzoic acid)
• Allybenzene (also known as 3-Phenyl-1-propene or 2-Propenyl-benzene)
• Ammonium formate
• Anthranilic acid (also known as 2-Aminobenzoic acid)
• Benzaldehyde
• Benzyl bromide (also known as alpha-Bromotoluene)
• Benzyl chloride (also known as alpha-Chlorotoluene)
• Calcium
• Chromic acid (including salts)
• Chromium trioxide (also known as Chromium (VI) oxide)
• Ergometrine (also known as Ergonovine)
• Ergotamine
• Ethanamine (also known as Monoethylamine)
• N-Ethylephedrine
• N-Ethylpseudoephedrine
• Formamide
• Hydrobromic acid (also known as Hydrogen bromide solution)
• Iodine (including iodine salts)
• Isosafrole (also known as 5-(1 Propenyl)-1,3-benzodioxile)
• Lithium
• Lysergic acid
• Magnesium
• Mercuric chloride (also known as Mercury (II) chloride or Mercury bichloride)
• Methylamine (also known as Aminomethane or Monomethylamine)
• Methylammonium salts
• N-Methylformamide
• Nitroethane
• Nitromethane
• Palladium (including salts)
• Phenylalanine
• Piperidine
• Potassium
• Propionic anhydryde
• Raney nickel
• Sodium
• Sodium borohydride
• Thionyl chloride
• Thorium (including salts)

Maximum Penalty:

Supply of Prohibited Drugs

Under s25 of the Drug Misuse and Trafficking Act 1985, a person commits an offence if they supply a prohibited drug.  Under Section 3 of the Drug Misuse and Trafficking Act 1985, the meaning of the word “supply” is defined to include selling and distributing, as well as agreeing to supply, offering to supply, keeping or having possession for supply, sending, forwarding, delivering, or receiving for supply, and authorising, directing, causing, suffering, permitting, or attempting any of those acts.

Maximum Penalty:

The maximum penalty for supplying prohibited drugs varies depending on the quantity and type of drug supplied. Please refer to the below maximum penalties table and schedule of prohibited drugs.

Click here to download a schedule of prohibited drugs and plants

Ongoing Supply of Prohibited Drugs

Under section 25A of the Drug Misuse and Trafficking Act 1985, a person commits an offence if on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward. This offence does not apply to cannabis.

Maximum Penalty:

Deemed Supply

Under section 29 of the Drug Misuse and Trafficking Act 1985, a person who has in their possession a traffickable quantity of a prohibited drug, shall be deemed to have the prohibited drugs in their possession for supply unless the person proves that they had the prohibited drugs in their possession for some other purpose.

Firstly, possession must be established. ‘Possession’ is not defined by legislation; however, it has been shaped by judicial interpretation of this section over time. Generally, it means that you intentionally have physical control or custody of a thing AND knowledge that you have it in your custody or control. Possession of a thing can either be exclusive (only you) or joint (shared with one or more other people). Once possession of not less than a traffickable amount of a drug is proved beyond a reasonable doubt, the accused has the onus of proving on the balance of probabilities that he or she had the drug otherwise than for supply.

When charged with deemed supply, the maximum penalty is the same as actual supply of that particular drug and quantity. See the maximum penalties under drug supply.