Published by Geoff Harrison | 25 April 2024
The offence of Ongoing Supply under s25A of the Drug Misuse and Trafficking Act 1985 ('the Act') carries a maximum penalty of 20 years imprisonment and/or 3500 penalty units ($385,000). The Justice Legislation Amendment Bill (No2) 2019 made the offence a Table 1 offence; hence, it can be dealt with in the Local Court. The significant aspects of this offence are:
That a person supplies drugs on 3 or more occasions within a 30 consecutive day period (regardless of quantity); and
that the supply is for financial or material reward.
Hence, this offence is concerned with the repetition of supply for financial gain. As financial gain is an element of the offence, it is not an aggravating factor, as per s21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999. However, financial gain is considered a significant factor in sentencing for drug supply offences ie. greed over need: R v Tulloh (unrep, 16/9/93, NSWCCA) Hunt CJ at CL.
It was stated in Daher, Payne JA (with whom Simpson AJA and Johnson J agreed) said:
[52] It is well established that s25A of the Drug Misuse and Trafficking Act is directed to the business operation of drug supply, meaning that the objective criminality of a contravention of the provision is determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied. It must be remembered, however, that the quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance. They take their place beside the number and quantities of individual incidences of supply: R v MRN [2006] NSWCCA 155 at [142]- [145] per Simpson J (with whom McClellan CJ at CL and James J agreed); R v Younan [2018] NSWCCA 180.
...
[54] I accept the applicant’s submission that it is not possible properly to make an assessment about the objective gravity of drug supply offences under ss 25 and 25A of the Drug Misuse and Trafficking Act without giving at least some consideration to the quantity of the prohibited drug involved.
Further, and as obviously noted, an offence of ongoing supply is more serious than an offence of isolated supply. As stated in the sentencing bench book: In Fayd’herbe v R [2007] NSWCCA 20, Adams J reviewed the authorities regarding s 25A, citing the following passage from R v CBK at [18] where Wood CJ at CL said at [57]:
"An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can [he] expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order [to] give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant".
Other Sources:
Cases:
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 25A
Offence of supplying prohibited drugs on an ongoing basis
(1) Offence provision A person who, 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 is guilty of an offence.
Maximum penalty--3,500 penalty units or imprisonment for 20 years, or both.
(2) Same prohibited drug not necessary A person is liable to be convicted of an offence under this section whether or not the same prohibited drug is supplied on each of the occasions relied on as evidence of commission of the offence.
(3) Jury must be satisfied as to same 3 occasions of supply If, on the trial of a person for an offence under this section, more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence.
(4) Alternative verdict--relevant supply offences If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly.
(5) Double jeopardy provisions A person who has been convicted of an offence under this section is not liable to be convicted--
(a) of a relevant supply offence, or
(b) of a separate offence under this section,
on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been convicted.
(6) A person who has been acquitted of an offence under this section is not liable to be convicted--
(a) except as provided by subsection (4)--of a relevant supply offence, or
(b) of a separate offence under this section,
on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been acquitted.
(7) A person who has been--
(a) convicted of a relevant supply offence, or
(b) acquitted of a relevant supply offence,
is not liable to be convicted for an offence under this section on the same, or substantially the same, facts as those relied on as evidence of commission of the relevant supply offence.
(8) Liability for relevant supply offences not affected by offence under this section Subject to subsections (5) and (6), this section does not--
(a) remove the liability of any person to be convicted of a relevant supply offence, or
(b) affect the punishment that may be imposed for any such offence.
(9) Exemption--lawful supply Nothing in this section renders unlawful the supply of a prohibited drug by--
(a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966 , or
(b) a person acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study.
(10) Definitions In this section--
"cannabis" means cannabis leaf, cannabis oil, cannabis plant and cannabis resin.
"relevant supply offence" means any offence under this Act (other than under this section) relating to the supply of a prohibited drug.