What counts as drug supply?
Drug Misuse and Trafficking Act 1985 (NSW), s 25: a person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. "Supply" is defined in s 3 to include selling and distributing, agreeing or offering to supply, keeping or having in possession for supply, and sending, forwarding, delivering or receiving for supply.
The definition is far wider than a sale. Giving drugs to friends is supply. Agreeing to supply is supply, even if nothing changes hands. Offering to supply is supply, even if you never had the drugs. Holding drugs for someone else is supply. And "knowingly taking part" reaches people who never touch the drugs at all — the person who takes the phone call, provides the premises, or drives the car.
Money does not need to move, and profit does not need to be made. The social supplier splitting a purchase among friends and the street dealer face the same charge — although, as the sentencing section below explains, the courts treat their positions very differently.
The quantity tiers — why grams decide everything
Every prohibited drug has quantity thresholds set out in Schedule 1 of the Act, and the alleged quantity places a supply charge in a tier. The tier sets the maximum penalty, the court, and the bail position:
- Small quantity — dealt with summarily in the Local Court unless the prosecution elects otherwise; maximum 2 years' imprisonment and/or a fine of $5,500 (50 penalty units) in that jurisdiction;
- Less than commercial (including indictable) quantity — maximum 15 years' imprisonment and/or a fine of $220,000 (2,000 penalty units), or 10 years where the drug is cannabis. Many of these matters still resolve in the Local Court, where the sentencing cap is 2 years;
- Commercial quantity — maximum 20 years' imprisonment and/or a fine of $385,000 (3,500 penalty units), with a standard non-parole period of 10 years. Strictly indictable: these matters proceed to the District Court;
- Large commercial quantity — maximum life imprisonment and/or a fine of $550,000 (5,000 penalty units), with a standard non-parole period of 15 years.
The thresholds differ drug by drug. For cocaine, heroin and methylamphetamine, the traffickable quantity is 3 grams, the commercial quantity 250 grams and the large commercial quantity 1 kilogram. For MDMA the numbers are lower again — a traffickable quantity is 0.75 grams, and 125 grams is commercial. Quantities this small mean the line between a personal-use matter and a District Court indictment can be a matter of grams — which is why the weight, the purity analysis and what is actually counted (admixture is included) are routinely contested.
"They were for me" — deemed supply, the rule that surprises everyone
Drug Misuse and Trafficking Act 1985 (NSW), s 29: a person who has in their possession a traffickable quantity of a prohibited drug is deemed to have the drug in their possession for supply, unless the person proves the drug was in their possession otherwise than for supply.
This is the most misunderstood rule in NSW drug law. Most people assume police must prove an actual sale, or at least an intention to sell. They do not. Possession of a traffickable quantity — 3 grams of cocaine, 0.75 grams of MDMA — is deemed to be supply. No buyer, no messages, no cash required. The quantity alone does the prosecution's work.
And the onus then reverses: it falls on you to prove, on the balance of probabilities, that the possession was for something other than supply — typically personal use. That is the opposite of how criminal law normally works, and it is why people who bought in bulk for a festival weekend, or who were holding a shared purchase, find themselves facing a supply charge rather than possession.
Deemed-supply charges are also among the most defensible. A credible, evidenced personal-use case — usage history, purchase context, the absence of supply indicia such as scales, baggies or tick lists — can discharge the onus, and these charges regularly resolve to possession. But that case has to be built deliberately, not improvised in a police interview.
Ongoing supply — section 25A
Drug Misuse and Trafficking Act 1985 (NSW), s 25A: 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: 20 years' imprisonment and/or a fine of $385,000 (3,500 penalty units).
Ongoing supply is the charge built for repeated small-scale dealing, and it is a significant escalation: quantity is irrelevant. Three small street-level supplies inside a month, each for reward, attract a 20-year maximum — the same as a commercial quantity. It does not matter that the same drug was not involved each time.
These prosecutions are typically constructed from telephone intercepts, message records and surveillance across weeks. The defence work is granular: each alleged occasion must be proved as an actual supply for reward, and occasions frequently fall away on close analysis — taking the charge below the three-occasion threshold and back into ordinary supply territory.
Bail for drug supply charges
Bail Act 2013 (NSW), s 16B: bail for certain serious drug offences — including supply of a commercial or large commercial quantity — is subject to the show-cause requirement.
For commercial and large commercial quantity supply, bail does not start from neutral. You must show cause why your detention is not justified before the court even reaches the usual unacceptable-risk assessment. That reversed starting point is why preparation matters so much: a supply bail application succeeds or fails on its structure — stable residence, reporting conditions, surety or security, the strength or weakness of the prosecution case, and delay to trial are all matters that can constitute cause.
Two practical points. First, a rushed application can be worse than a delayed one — a refusal in the Local Court means waiting for a Supreme Court bail listing, so the first application should be the properly prepared one. Second, bail conditions are negotiable and variable; conditions that made sense at charge often warrant revisiting as the matter progresses. Every matter turns on its own facts.
Defences and answers to a supply charge
- Personal use — discharging the deemed-supply onus with a credible, evidenced account, resolving the matter to possession;
- Knowledge — the prosecution must prove you knew (or believed) you had a prohibited drug; couriers and holders of packages can genuinely lack that knowledge;
- Possession itself — exclusive custody and control must be proved, a real issue in shared houses and vehicles;
- Quantity and analysis — the certificate evidence, what was weighed and how mixtures were treated can move a charge down a tier, with everything that follows from that;
- Illegally or improperly obtained evidence — search powers, warrants and reasonable suspicion are tested against s 138 of the Evidence Act; evidence from an unlawful search can be excluded;
- Duress — where it genuinely arises on the facts.
Which of these has real prospects is a judgement made on the full brief — and it shapes everything from the bail application to the plea decision. It is the conversation to have early.
How Lenz Legal approaches supply charges
Dean Lenz has defended drug supply matters for more than twenty years — from deemed-supply charges arising out of festival searches to commercial-quantity prosecutions built on months of telephone intercepts. The method is the same senior, early-intervention approach each time: secure the bail position first, obtain the full brief including the analysis certificates and the basis of the alleged quantity, and test the tier before anything else — because the tier is negotiable more often than people expect, and everything flows from it.
Where the realistic course is a plea, the work turns to the facts agreed, the role characterised — courts sentence the social supplier, the user-dealer funding an addiction and the commercial operator very differently — and a subjective case that gives the court a genuine basis for the least serious available outcome. Where supply charges arrive alongside asset restraint, the proceeds of crime dimension is handled as part of the same strategy, not as an afterthought.
If you have been charged with supply — or searched, and you expect a charge — get advice before any police interview. What is said in that room about whose drugs they were, and what they were for, is frequently the single most damaging evidence in a supply prosecution.
Drug supply — your questions answered
What is deemed supply?
Under s 29, possessing a traffickable quantity of a prohibited drug is deemed to be possession for supply — unless you prove, on the balance of probabilities, that it was for something else, such as personal use. No sale or intention to sell needs to be proved. It reverses the usual onus, and it is how most supply charges involving personal quantities come to be laid.
Will I go to jail for first-time supply?
Not necessarily. Courts treat supply seriously even for first offenders, and at commercial quantities custody is the common outcome — but for smaller quantities, outcomes range from non-conviction orders through community-based orders, depending on quantity, role, plea and the subjective case put for you. Every matter turns on its own facts.
What is a commercial quantity?
Each drug has its own threshold in Schedule 1 — 250 grams for cocaine, heroin or methylamphetamine; 125 grams for MDMA. A commercial quantity carries a 20-year maximum with a 10-year standard non-parole period, proceeds in the District Court, and triggers the show-cause bail requirement.
Can I get bail on a supply charge?
Often, yes. For commercial and large commercial quantities you must first show cause why detention is not justified — a reversed starting point that makes preparation decisive. A structured application addressing residence, reporting, security and the strength of the prosecution case gives bail its best prospects, and a Local Court refusal can be taken to the Supreme Court.
Can a supply charge be negotiated or downgraded?
Sometimes. Deemed-supply charges resolve to possession where the personal-use case holds, and quantity or analysis disputes can move a charge down a tier. Those negotiations are best had early, on the full brief, before positions harden.