What Is the Penalty for Drug Dealing in NSW?
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Quick Answer
The penalty for drug dealing in NSW ranges from 2 years imprisonment up to life imprisonment, depending on the quantity and type of drug involved.
Drug dealing is prosecuted as drug supply under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). Schedule 1 of the Act sets out five quantity thresholds (small, traffickable, indictable, commercial, and large commercial), each with escalating maximum penalties. A small supply of a non-commercial quantity can result in a 2-year Local Court sentence. A large commercial quantity of cocaine or methylamphetamine attracts up to life imprisonment.
How Drug Dealing Is Charged in NSW
NSW law does not have a separate “drug trafficking” offence. What is commonly called drug dealing is prosecuted as drug supply under the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA).
The main supply offence is in section 25(1) of the DMTA. “Supply” is defined broadly in section 3 and includes selling, distributing, agreeing or offering to supply, keeping or having in possession for supply, delivering or receiving for supply, and authorising or attempting any of those acts.
You do not need to receive money to be charged with supply. Giving drugs to a friend can amount to supply, as can keeping drugs ready for distribution.
Deemed Supply: When Possession Becomes Supply
Section 29 of the DMTA contains a “deemed supply” provision. Where a person possesses a quantity of drugs at or above the traffickable quantity for that drug, the law presumes the drugs were possessed for supply.
The reverse onus means the accused must prove on the balance of probabilities that the drugs were possessed for a purpose other than supply (such as personal use). This makes the traffickable quantity threshold critically important in drug prosecutions.
The Five Quantity Thresholds
Schedule 1 of the DMTA divides prohibited drugs into five quantity categories. The category determines both the offence and the maximum penalty.
Quantity | Cocaine Example | Cannabis Leaf Example | Methylamphetamine |
Small | 1g | 30g | 1g |
Traffickable | 3g | 300g | 3g |
Indictable | 5g | 1kg | 5g |
Commercial | 250g | 25kg | 250g |
Large commercial | 1kg | 100kg | 500g |
The large commercial threshold for methylamphetamine was halved from 1kg to 500g in 2015, reflecting parliament’s intention that supply between 500g and 1kg attract heavier sentences (Chong v R [2017] NSWCCA 185).
Maximum Penalties by Quantity
The penalty depends on the quantity, the type of drug (cannabis is treated less severely than other drugs), and the court hearing the matter.
Quantity / Court | Cannabis Leaf | Other Drugs |
Small / Traffickable / Indictable (Local Court) | 2 years and/or $11,000 fine | 2 years and/or $11,000 fine |
Indictable (District Court) | 10 years and/or $220,000 fine (s 32(1)) | 15 years and/or $220,000 fine (s 32(1)) |
Commercial (s 33(2)) | 15 years and/or $385,000 fine | 20 years and/or $385,000 fine |
Large commercial (s 33(3)) | 20 years and/or $550,000 fine | Life imprisonment and/or $550,000 fine |
Penalty units are currently $110, so 2,000 penalty units equals $220,000, 3,500 units equals $385,000, and 5,000 units equals $550,000.
Standard Non-Parole Periods apply for certain section 25(2) offences not involving cannabis leaf: 10 years for commercial quantity and 15 years for large commercial quantity.
Ongoing Supply: Section 25A
Section 25A of the DMTA creates a separate offence of supplying prohibited drugs on an ongoing basis. The offence applies where a person supplies a prohibited drug (other than cannabis) on three or more occasions within any 30-day period for financial or material benefit.
- Maximum penalty: 20 years imprisonment and/or 3,500 penalty units ($385,000)
- The same drug does not need to be supplied each time (s 25A(2))
- All jurors must agree on the same three occasions to convict (s 25A(3))
This is a particularly important offence for repeated low-level dealing that does not reach commercial quantity thresholds.
What the Prosecution Must Prove
To secure a conviction for drug supply, the prosecution must prove each element beyond reasonable doubt:
- The accused supplied or knowingly took part in the supply of a substance
- The substance was a prohibited drug listed in Schedule 1
- The accused knew the substance was a prohibited drug
For commercial or large commercial supply, the quantity must be averred in the indictment and proved as an additional element. For deemed supply under section 29, possession at or above the traffickable quantity is proved by the prosecution, and the accused then bears the onus of proving the possession was for purposes other than supply.
Defences to Drug Supply
Several defences can result in a drug supply charge being dismissed, withdrawn, or reduced:
- Personal use (s 29 DMTA): For deemed supply charges, the accused can prove on the balance of probabilities that the drug was for personal use only
- Carey defence (R v Carey (1990) 20 NSWLR 292): Possession was momentary or transient, with the sole purpose of returning the drugs to their true owner
- Lack of knowledge: The accused did not know the substance was a prohibited drug, particularly relevant for couriers
- Duress or necessity: The accused was forced to act by threats from another person
Unlawful search: Evidence obtained in breach of the Law Enforcement (Powers and Responsibilities) Act 2002 may be excluded
Final Thoughts
Drug dealing in NSW is treated very seriously, with penalties scaling sharply with quantity. A small or traffickable supply heard in the Local Court can attract a 2-year maximum, while a large commercial supply of cocaine or methylamphetamine attracts up to life imprisonment. The five-tier quantity system in Schedule 1 of the Drug Misuse and Trafficking Act 1985 is the central framework for sentencing. Defences exist, particularly for deemed supply matters where personal use can be established.
Frequently Asked Questions
What is the maximum penalty for drug supply in NSW?
The maximum penalty is life imprisonment for the supply of a large commercial quantity of a prohibited drug other than cannabis, under section 33(3) of the Drug Misuse and Trafficking Act 1985 (NSW). For cannabis leaf at the same quantity, the maximum is 20 years.
What is “deemed supply” in NSW?
Under section 29 of the DMTA, possessing a drug at or above the “traffickable quantity” creates a legal presumption that the drug was possessed for supply. The accused can rebut this presumption by proving, on the balance of probabilities, that the possession was for personal use or another purpose.
What is the difference between drug supply and drug trafficking in NSW?
NSW does not have a separate “drug trafficking” offence. What is commonly called drug trafficking is prosecuted as drug supply under section 25 of the DMTA, particularly commercial quantity supply (s 25(2)) or ongoing supply (s 25A).
Can drug supply be heard in the Local Court?
Yes, for small, traffickable, and indictable quantities, the matter can be dealt with summarily in the Local Court, with a maximum penalty of 2 years imprisonment and/or $11,000. Commercial and large commercial quantities are strictly indictable and must be heard in the District Court or Supreme Court.
Will I go to jail for first-time drug supply?
It depends on the quantity. For small or traffickable quantities heard in the Local Court, non-custodial outcomes are achievable for first-time offenders with strong mitigation, including Intensive Correction Orders served in the community. For commercial or large commercial supply, full-time imprisonment is the realistic outcome.
If your matter is urgent, call (02) 8084 9929 today to arrange a free initial consultation.
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