If you’ve been charged with a drug offence in New South Wales, the exact wording of that charge matters enormously. “Possession” and “supply” sound similar, but under NSW law they carry vastly different penalties — and in some cases, you can be charged with supply even if you never sold or gave a drug to anyone.
Understanding the distinction is critical, because the quantity of drugs found in your possession can automatically change a possession charge into a supply charge, regardless of your actual intentions. Our Sydney drug charge lawyers see this catch people out regularly, and it’s why acting quickly after a charge is laid is so important.
What Is Drug Possession Under NSW Law?
Drug possession in New South Wales is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW). To prove possession, the prosecution must establish that you knowingly had custody or control of a prohibited drug — this covers substances such as cannabis, cocaine, MDMA, methamphetamine, and heroin.
The maximum penalty for simple possession under section 10 is 2 years’ imprisonment and/or a fine of 20 penalty units (currently $2,200) when dealt with in the Local Court. This is significantly less severe than a supply charge, which is why the distinction matters so much.
What Is Drug Supply Under NSW Law?
Supply is dealt with under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). “Supply” is defined broadly under the Act — it isn’t limited to selling. Giving drugs to a friend, agreeing to supply, offering to supply, or even holding drugs for someone else can all fall within the definition, even where no money changes hands.
Supply is an indictable offence, and the maximum penalty depends on the quantity involved. Matters dealt with summarily in the Local Court carry a lower maximum, while matters that proceed on indictment in the District Court can carry penalties of up to 15 years’ imprisonment and/or a fine of up to $220,000 for an indictable quantity — with even higher maximums for commercial quantities. Because these penalties scale so sharply with quantity, getting early advice on how your matter will be classified is essential.
The “Deemed Supply” Trap
This is where many people are caught out. Under section 29 of the Drug Misuse and Trafficking Act 1985 (NSW), if you’re found with an amount of a drug equal to or greater than the “traffickable quantity” set for that drug, the law presumes you possessed it for the purpose of supply — even if you intended it purely for personal use.
Once the prosecution proves you had a traffickable quantity, the onus shifts to you to prove, on the balance of probabilities, that you had the drug for a purpose other than supply. This reversal of the usual burden of proof is a significant reason why quantity-based drug charges require experienced legal representation from the outset. Our guide on the difference between commercial use and personal possession of dangerous drugs explores how a similar concept applies in Queensland, if your matter has a cross-border element.
Common Defences to Possession and Supply Charges
The right defence depends entirely on the facts of your case, but common approaches include:
- Challenging knowledge or control — arguing you didn’t know the drug was present, or didn’t have control over it
- Challenging the legality of the search that led to the drugs being found
- Rebutting the deeming provision — providing evidence the drugs were for personal use, not supply
- Duress or third-party possession — where drugs belonged to, or were left by, someone else
If your charge arose from a police search, it’s worth understanding your rights during that process. See our article on what you need to know about seizure of property by police for background on how evidence is gathered and challenged.
Why Choose Hannay Criminal Defence
Hannay Criminal Defence offers specialist legal representation for professionals, public servants, police officers, and athletes, and our Sydney team has represented clients across the full spectrum of drug charges — from simple possession to large-scale supply matters. With thousands of court appearances behind us, we know how to scrutinise the prosecution’s evidence, challenge deeming provisions, and negotiate downgraded charges where the evidence supports it.
What to Do Next — Don’t Wait
The longer you delay seeking legal help, the more serious drug charges can become — particularly where a possession charge risks being escalated to supply. If you’ve been charged, or police have indicated charges are coming, contact us before you say anything further to investigators.
Call our Sydney office on 1800 562 096 or visit our contact page to arrange a free initial consultation. Best recommendation: talk to us now. Worst thing to do: do nothing.
