Section 25A: the three-supplies rule.

Section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) is one of the most consequential charges in the NSW drug offence regime. It captures supply of a prohibited drug other than cannabis on three or more separate occasions within 30 consecutive days, for financial or material reward. The maximum penalty is 20 years imprisonment or 3,500 penalty units, or both. The section is strictly indictable. It was inserted into the Act in 1998 to capture sustained low-volume supply (typical of street dealing) where the individual supplies would each have attracted a lower-volume penalty under section 25 but the pattern of supplies points to ongoing commercial dealing. This note explains the elements, the strategic decisions the section forces, and the defences that matter.

The legal hook.

Section 25A(1) provides that "a person who, on three 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". The maximum is set out in s 25A(2): imprisonment for 20 years, a fine of 3,500 penalty units, or both. Section 25A(3) provides that it is not necessary that the same prohibited drug be supplied on each of the three occasions.

Three matters are worth noting from the section text. First, the supply must be for financial or material reward; pure social supplies, where no exchange of value is involved, are not captured by section 25A (although they may be captured by section 25). Second, the supplies do not have to be of the same drug; an offender supplying methylamphetamine on one occasion, cocaine on another, and MDMA on a third within 30 days commits one section 25A offence. Third, the supplies have to be on "separate occasions"; multiple supplies on the same occasion to different recipients usually do not count as separate occasions unless the surrounding circumstances are different (different transactions, different times of day, separable in fact).

Cannabis is explicitly excluded from section 25A. Sustained low-volume supply of cannabis is dealt with under section 25, with the small-quantity / indictable-quantity / commercial-quantity bands governing the maximum.

Standard non-parole period and sentencing range.

Section 25A is listed in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as a standard non-parole period offence. The standard non-parole period sets a reference point at which the court must start when fixing the non-parole period for an offence in the middle of the range of objective seriousness. The standard non-parole period for section 25A is set by the Table and operates in the way the Table operates for other listed offences.

The realistic sentencing range for a section 25A offence turns on the objective seriousness of the conduct, the duration of the supply, the value extracted, the nature of the network, the offender's role, and the subjective case. For a first-offender plea of guilty in the District Court on a matter at the lower end of the range (a small number of supplies just exceeding the three-supplies threshold, low value, no broader network), the realistic head sentence is around three to five years with a non-parole period of around twelve to thirty months. For matters in the middle of the range, the head sentence sits in the five-to-eight-year band. For matters at the upper end (sustained supplies over the full 30-day window or longer, significant value, supply within a structured network) the head sentence reaches into the upper range.

Full-time custody is the default for a section 25A offence. Intensive correction orders are rarely imposed for s 25A; the conduct is at the level of seriousness that the legislature treated as warranting custodial response. Where an ICO is in play, it is for a matter at the very lowest end of the range with a particularly strong subjective case.

The defences that matter.

The three-supplies element. The Crown must establish three separate occasions of supply within 30 consecutive days. Where the brief discloses only two clean supplies plus a third event that the prosecution characterises as a third supply (a controlled-buy that the defence can characterise as a single transaction; a delivery the defence can characterise as a continuation of one of the earlier supplies; a possession the defence can characterise as not supply), the third occasion is contestable. Where the third occasion fails, the section 25A charge fails and the residual matters are dealt with under section 25.

The financial-reward element. The supply must be for financial or material reward. Where the supplies are characterised as social supplies among friends, with no exchange of value, the financial-reward element fails. The defence is supported by the absence of evidence of payment (no cash recovered, no banking trace, no messages negotiating price) and by the social context of the supplies.

Identification and attribution. Many section 25A prosecutions rest on combined evidence: controlled-buy operations, intercepted telecommunications, observational surveillance, and forensic recovery from devices. The strength of the attribution is the first question; where the brief establishes that supplies occurred but not that the accused was the supplier on each of the three occasions, identification is contestable.

Procedural challenges. Section 25A briefs are typically large and rely on surveillance product, intercepted material under the Telecommunications (Interception and Access) Act 1979 (Cth), and search warrant material under LEPRA. Each of these evidence categories has its own admissibility framework. Section 138 of the Evidence Act 1995 (NSW) is the discretionary exclusion vehicle where the evidence was improperly or illegally obtained; properly run exclusion applications can remove key pieces of the prosecution case.

The strategic decisions the section forces.

Section 25A is the kind of charge that forces three early decisions in the matter.

Plea or trial. The strictly indictable status and the 20-year maximum mean the matter is on a committal pathway from the start. The plea decision is consequential and timing-sensitive (the early-plea discount under section 25D of the Crimes (Sentencing Procedure) Act 1999 applies). The decision should not be made before the brief is read; the brief is typically substantial and the case-conference stage is when the strategic picture clarifies.

Drug Court referral. Section 25A is excluded from Drug Court eligibility where the matter is at the upper end of indictable-quantity supply, but for many section 25A matters the offending is driven by the offender's own dependency and a Drug Court referral is the right pathway. The accompanying note on the Drug Court of NSW sets out the eligibility framework and the referral process.

Assistance to authorities. Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for a discount of up to 50 per cent on the discounted head sentence for assistance to authorities. For a section 25A offender at the lower end of a structured network, the assistance route can produce material reduction. The assistance decision is one of the most serious decisions in a drug-supply matter; it has consequences for safety, for credibility within other communities, and for the offender's later life. The decision is not lightly made and is made with senior counsel involved.

One last note.

Section 25A is the charge that captures the rhythm of ongoing supply where the volume on any single occasion is not particularly high. It is the charge that catches many small-scale dealers, many users who have been selling to fund their own use, and many people on the periphery of larger networks. The 20-year maximum and the SNPP framework mean the matter is serious from the moment of charge. The work of the defence is to test the three-supplies element, the financial-reward element, and the attribution; to manage the procedural challenges to the surveillance and intercept material; and to identify whether the matter is one where the Drug Court, the assistance regime, or both, can produce a materially better outcome than an orthodox sentence.

This note is general information about NSW drug-supply law and is not legal advice for any particular case. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

← Back to all insights