You can be charged with what’s known as deemed supply if you are found to be in possession of a quantity of drugs that exceeds the legally defined threshold for personal use. This is when a person is caught with not less than a ‘traffickable’ quantity. There does not have to be proof of any actual supply or financial gain, as long as the prosecution can prove beyond a reasonable doubt that you were in possession of a certain amount. It is then up to you to prove why it is not supply. This article will delve into the offence of deemed supply, its risks, defences, and more.

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What is Deemed Supply in NSW?

Legal Definition and Presumption

Deemed Supply is a charge that can be faced by an individual who is found with a quantity of drugs that exceeds the legally defined threshold for personal use. This means that the law assumes an intention to supply even if there is no additional evidence to support the supplying of drugs.

Section 29 of the Drug Misuse and Trafficking Act 1985 (NSW) makes this an offence, ‘A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of a prohibited drug, shall, for the purposes of this division be deemed to have prohibited drug in his or her possession for supply’.

What the Prosecution Must Prove

So, what is considered ‘deemed supply’? The provision explains that as long as you were in fact in possession of a prohibited drug which is not less than a trafficable quantity and the accused had knowledge of this, then the offence of ‘possession taken to be for supply’ can easily be established. Rather than the prosecution needing to prove intent to supply, the accused must demonstrate that their possession of the drug was for reasons other than supply.

Why Deemed Supply Laws Exist

Deemed supply laws in NSW were introduced to make it easier for authorities to prosecute drug-related offences and to disrupt drug distribution networks at their source. By presuming supply when someone possesses more than a traffickable quantity, the law discourages individuals from stockpiling drugs, whether for personal use or otherwise. This approach also reduces the need for police to prove actual intent to sell, which can often be difficult.

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Thresholds and Quantities That Trigger Deemed Supply

Traffickable Quantities in NSW

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The quantity of drugs plays a major role in both the charge and potential penalty. Possessing a traffickable amount can trigger a deemed supply charge, while larger thresholds, such as indictable, commercial, and large commercial quantities, can lead to supply prohibited drug charges. Depending the amount found, the penalties can also differ based on how large or how little the quantity reported is.

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Legal Consequences of a Deemed Supply Charge

Possible Penalties

The penalties for deemed supply in NSW depend on the drug quantity and the seriousness of the case. Courts have discretion to sentence a person to whatever they deem appropriate. However, with a lawyer present, the chances of getting a more favourable outcome are much higher. Some common penalties include:

• Criminal Conviction: This is when the Court finds you guilty and makes an order for a formal finding of guilt recorded on your record. This is the foundation for most sentences and can affect your reputation, employment, and ability to travel overseas.
• Community Correction Order: The Court can also sentence you to a community Corrections Order (CCO) which is an alternative to jail, usually involving strict conditions such as curfews, regular reporting, community service, treatment programs, or supervision by Community Corrections. Breaching these conditions can result in imprisonment.
• Full-time Imprisonment: Depending on the quantity and the nature of the offence, the Court can sentence you to the harshest penalty, which is a term of imprisonment.

Criminal Record and Long-Term Impact

A conviction for deemed supply can have serious consequences that extend well beyond the sentence itself. Once recorded, the conviction forms part of your permanent criminal history and is accessible by employers, government agencies, and overseas authorities. This can impact both your personal and professional life by limiting employment opportunities which require background checks and can also cause you trouble when travelling to certain countries. A conviction can also damage personal reputation and relationships, creating long-term challenges in day-to-day life.

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How to Defend a Deemed Supply Charge

Proving Personal Use

One of the main ways to defend a deemed supply charge is by proving that the drugs in question were intended solely for personal use. Because the law presumes supply once a traffickable quantity is possessed, the burden shifts to the accused to rebut that presumption. This can be done by presenting evidence that supports personal use, such as records of personal drug habits, the presence of paraphernalia like pipes or syringes, or even admissions made during a police caution. Successfully demonstrating personal use can reduce the charge to possession, which carries significantly lighter penalties.

Challenging the Search or Arrest

Another defence to a deemed supply charge is to challenge the legality of the search or arrest. If police conduct a search without a valid warrant, without reasonable suspicion, or in breach of proper procedures, the evidence obtained may be inadmissible and therefore can not be used in Court. Common errors include failing to properly inform a person of their rights, exceeding the scope of a search warrant, or conducting a search without lawful grounds. Careful legal scrutiny of police procedure is essential, as bringing up unlawfully obtained evidence can significantly weaken the prosecution’s case or lead to a dismissal.

Other Possible Defences

Aside from proving personal use or challenging police procedure, there are several other defences that may apply to a deemed supply charge. A person may argue a lack of knowledge, for example, if they were unaware that drugs were in their possession. Mistaken identity can also be raised where there is uncertainty about who actually possessed the drugs. Another defence is possession without control, where drugs are found in a shared space without proof of exclusive possession. In practice, these strategies have helped reduce charges from supply to simple possession, and in some cases, have resulted in charges being dropped.

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Why You Need a Lawyer for Deemed Supply Cases

Deemed supply is a very serious charge in NSW, carrying the risk of prison even if there is no evidence of dealing. Since the law presumes supply once a traffickable quantity is found, the defence must actively prove otherwise, which makes expert legal advice crucial.

An experienced criminal defence lawyer can challenge unlawful searches, find flaws in the prosecution’s case, and present evidence of personal use to have charges reduced to possession. In some cases, they may negotiate downgraded charges or even seek a Section 10 dismissal to avoid a conviction.

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Need Help Fighting a Deemed Supply Charge?

Being charged with deemed supply is serious, but it doesn’t guarantee a conviction. With the right defence, charges can often be reduced or dismissed. At Faraj Defence Lawyers, we have proven experience in deemed supply cases. We know how to challenge evidence, protect your rights, and push for the best possible result.

If you or a loved one is facing a deemed supply charge, contact us today for a free initial consultation.

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