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Court of Criminal Appeal 7 November 2025

Barber v R

[2025] NSWCCA 179

Drugs
CRIM E APPEALS APPEAL AGAINST CONVICTION 1,4 BUTANEDIOL WHETHER GUILTY VERDICT UNREASONABLE

Citation: Barber v R [2025] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 7 November 2025
Judges: Garling J; Ierace J; Dhanji J

Background

The appellant was stopped by police while driving in December 2022. A search of his vehicle uncovered methylamphetamine and, in a hidden compartment, 96.5 grams of 1,4-butanediol (butanediol), an industrial solvent that some people drink for its MDMA-like effect when metabolised. A subsequent search warrant executed at his home uncovered a further 1,008.7 grams of butanediol across three bottles in a safe, bringing the total to 1,105.2 grams, which met the commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA).

The appellant was tried by judge alone in October 2023 on a charge of supplying a commercial quantity of butanediol, contrary to s 25(2) of the DMTA. He was found guilty and subsequently sentenced, together with several other offences, to an aggregate term of 5 years and 7 months imprisonment with a non-parole period of 3 years and 7 months.

The appellant did not dispute that he possessed a commercial quantity of butanediol, nor that he intended to supply at least some of it. His case on appeal was that he also intended to consume a substantial portion himself, and that this personal use intention should have prevented a conviction for commercial quantity supply.

  • Whether the guilty verdict was unreasonable or unsupported by the evidence, given the appellant's claimed intention to personally consume a substantial portion of the drug
  • How the "deeming provision" in s 29(a) of the DMTA operates where a person in possession of a commercial quantity of a prohibited drug claims that part of the quantity was for personal use
  • Whether s 29(a) required the court to treat only the portion intended for supply as the relevant quantity, potentially reducing the conviction to the lesser offence under s 25(1)

Decision

The Court granted leave to appeal but dismissed the appeal. The central question was how s 29(a) of the DMTA operates. That provision deems a person who possesses a prohibited drug exceeding the traffickable quantity to have possessed it for the purpose of supply, unless they prove otherwise. The Court held that the definite article "the" in s 29(a) refers to the entire quantity of prohibited drug in the person's possession, not merely a portion of it.

To displace the deeming provision, the appellant was required to prove on the balance of probabilities that "the" drug (meaning the whole quantity) was possessed for a purpose other than supply. It was not enough to show that part of the quantity was intended for personal use. Demonstrating a mixed intention (some for personal use, some for supply) does not satisfy s 29(a) and leaves the deeming provision fully operative over the entire quantity.

A critical factual finding was that the four separate quantities of butanediol could not be distinguished from one another. Because they were effectively indivisible, there was no basis for the court to identify any discrete portion as intended for personal use. The result was that the whole quantity remained deemed to be possessed for the purpose of supply.

The appellant's alternative arguments, including that s 29(a) had no application at all, that the trial judge had not actually applied the deeming provision, and that the judge's reasons were deficient, were each rejected. The Court also observed, in closing, that the appellant's intended personal use remained relevant to sentencing even if it could not affect conviction, and that a commercial quantity conviction is not automatically more serious than a non-commercial supply conviction.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 29(a) of the DMTA, the deeming provision operates on "the" prohibited drug in a person's possession, meaning the entirety of the quantity held. A person seeking to displace the presumption must prove that the whole quantity was possessed for a purpose other than supply.
  • A mixed intention (part personal use, part supply) is insufficient to satisfy s 29(a). Proof that some of the drug was intended for personal consumption does not prevent the entire quantity from being deemed to be possessed for the purpose of supply.
  • Where separate quantities of a drug cannot be distinguished from one another, they become an indivisible whole. In that circumstance, it is not possible to identify any discrete portion as possessed for a non-supply purpose, and the deeming provision applies to the total quantity.
  • In dismissing the appeal, the Court confirmed that an appellant's intended personal use of a drug, while irrelevant to the conviction where s 29(a) applies, may still carry weight at the sentencing stage as part of the factual matrix.
  • A conviction for supplying a commercial quantity under s 25(2) of the DMTA does not automatically attract greater objective gravity than a supply conviction under s 25(1). The sentence must reflect the actual conduct, not simply the boundary between offence categories.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 10, 25, 29, Sch 1
- Crimes Act 1900 (NSW), s 193C
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW), s 141
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16
- Weapons Prohibition Act 1998 (NSW), s 7
- Poisons and Narcotic Drugs Ordinance 1978 (ACT), s 4

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- The King v ZT [2025] HCA 9; (2025) 99 ALJR 676
- ZZ v R [2024] NSWCCA 25
- Salameh v R [2024] NSWCCA 239
- Chapman v R (2013) 232 A Crim R 500; [2013] NSWCCA 91
- Alliston v R (2011) 217 A Crim R 323; [2011] NSWCCA 281
- R v Carey (1990) 20 NSWLR 292; (1990) 50 A Crim R 163
- McEwen v R (1998) 99 A Crim R 421
- Hughes v R (1983) 49 ALR 110; (1983) 10 A Crim R 125
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
- Kiangatha Holdings Pty Ltd v Water NSW (2020) 247 LGERA 1; [2020] NSWCCA 263