Barber v R [2025] NSWCCA 179

Barber v R [2025] NSWCCA 179 · Read the judgment on AustLII

Catchwords: Supply – Deemed supply – Possession of only a portion of drugs for a non-supply purpose

In this judgment the CCA has determined that, where an accused accrues an onus of proof to establish that the drugs in their possession was not for the purpose of supply, they must establish (on the balance of probabilities) that the whole of that portion in their possession was for a purpose other than supply. In other words, if they want to assert that only some of the amount was, for example, for personal use, that will not be enough.

The applicant was found in possession of, amongst other things, a total of 1,105.2g of butanediol in his car and wardrobe. The commercial quantity for butanediol is 1,000g. The Crown case proceeded as a single ‘rolled-up’ count, with the result that the charge exceeded the commercial quantity threshold by 105.2g. The applicant took the matter to trial, which was heard judge-alone. At trial, there was evidence that the applicant was a heavy user of the drug, although the trial judge did not accept that the applicant intended to consume the entirety of what was found. The Crown contended at trial that the applicant intended to supply at least some part of the drug in his possession, and the trial proceeded on the basis that if the Crown established this, then the applicant should be convicted. On appeal, the applicant argued that the trial had proceeded on a false premise: he contended that the proper understanding was that he had intended to use a sufficient amount of the drug such that what remained would have been less than the commercial quantity (i.e. less than 1,000g), thus precluding his conviction for commercial supply.

This argument (which practitioners might recognise as being relatively common) brought into sharp focus the interpretation of the ‘deemed supply’ provisions in the Drug Misuse and Trafficking Act 1985 (‘DMTA’). Those provisions provide that where an accused person is found in possession of greater than the traffickable quantity nominated for a particular drug, it then falls on the accused to establish, on the balance of probabilities, that the drug was not possessed for the purpose of supply. But what if they can only establish that a portion of the drugs was not for supply?

The Court (Garling, Ierace, and Dhanji JJ, in a unanimous judgment), held that the applicant’s argument must fail. To understand why it is necessary to consider the terms of s 29(a) of the DMTA. That section applies when a person possesses ‘an amount of a prohibited drug’ which is in excess of the relevant threshold. On this being established, the person is deemed to possess ‘the prohibited drug’ for the purpose of supply. The definite article ‘the’ in this context refers to the entirety of the prohibited drug which is in the person’s possession. The requirement in s 29(a) that the person prove, on the balance of probabilities, that they had possession of ‘the’ prohibited drug for a purpose other than supply is again a reference to the drug as a single quantity. If the person fails to prove that ‘the’ (whole single quantity) of the drug was in the person’s supply for a purpose other than supply, then s 29(a) is not satisfied, and the person would thus be deemed to be in possession of the whole quantity of the drug for the purpose of supply (at [27] – emphasis from judgment). There is no separate offence of ‘deemed supply’.

The offence is one of ‘supply’, whether simpliciter, commercial supply, or some other variant. When based on an extended definition, an offence of ‘supply’ can be established by proving, amongst other alternatives, that the person possessed the drug for the purpose of supply – possibly relying on the deeming provision to do so. The mental element to be established relates to the intention with, and at the time, the drug is possessed. It does not relate to what the person has done in the past with drugs that were previously in their possession – although obviously evidence of past conduct may be relevant to future intention. Nor is the mental element proved by speculation about what the person ‘would’ have done with the drugs in the future (at [30]).

In the present case it was not possible to point to any part of the substance possessed by the applicant and be positively satisfied on the balance of probabilities that that part was possessed by the applicant for a purpose other than supply. Thus, the whole quantity was deemed to be in the applicant’s possession for supply. That is, proof of an intention to use some part of the drug possessed is not inconsistent with a failure to prove that the whole of the drug was possessed other than for supply (at [31]). The Court observed that there is a surprising dearth of authority in relation to this issue, but ultimately none of the few authorities spoke against the construction favoured by the Court in this case, so that the applicant’s argument must fail (at [32]-[35]).

For those and other reasons, the appeal was dismissed. However, the Court also noted that the fact that the applicant was a ‘heavy and experienced drug user’ was relevant to sentence. Although the maximum penalty was that set for an offence under s 25(2) involving a commercial quantity, a particular offence of a supply of a commercial quantity of a prohibited drug is not necessarily more serious than an offence of supply against s 25(1) (of supplying less than a commercial quantity). Previous authority observes that the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of a particular offence are drawn. In this case, the applicant’s offence did not become radically more serious at the point when the quantity of the drug in his possession increased from 999g to 1,000g. Nor could the fact that the applicant did not intend to supply all of the drug in his possession be removed from the equation. The absence of any complaint about the sentence imposed in this case (5 years and 7 months, with a non-parole period of 3 years and 7 months, for a total of nine offences, variously involving drugs, prescribed substances, weapons, and proceeds of crime) implicitly acknowledges that the sentencing judge did not misunderstand these basic principles (at [46]-[47]).