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Drug Possession Charges in NSW

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, possessing a prohibited drug carries a maximum penalty of 20 penalty units and/or 2 years imprisonment. Though this is the most minor form of offence in relation to prohibited substances, it is still treated very seriously by the Courts and a criminal conviction is likely.

In NSW, a court can impose any of the following penalties for a possess prohibited drug charge.


THE OFFENCE OF POSSESSING A PROHIBITED DRUG:

The offence of possessing a prohibited drug is contained in section 10 of the Drug Misuse and Trafficking Act which states that: "a person who has a prohibited drug in his or her possession is guilty of an offence."

WHAT ACTIONS MIGHT CONSTITUTE POSSESSION OF A PROHIBITED DRUG?

  • Prohibited drugs are those listed in Schedule 3 of the Drug Misuse and Trafficking Act.
  • The term 'possess' is very broadly construed and read in relation to its general meaning. The most obvious example is if you had a prohibited drug on your person.
  • You may also be charged if you were deemed to be in ‘control’ of the drug. For example, if you were pulled over driving and the substance was found in the glove compartment of the car.
  • In addition, if you are in possession of a traffickable quantity of a drug, it is presumed that you are in possession of the drugs for the purposes of supply, and as such, you may be charged with a "deemed supply".

What is "deemed supply"?

If you are in possession of a traffickable quantity of a drug, it is presumed that you possess the drugs for the purposes of supply, unless you can prove that they were only for personal use.

WHAT THE POLICE MUST PROVE:

To convict you of possessing a prohibited drug, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • You had a prohibited drug in your possession; and
  • You knew it was in your possession, or you knew of its likely existence and nature; or
  • You believed that it was a drug.

POSSIBLE DEFENCES FOR POSSESSING A PROHIBITED DRUG:

It is a defence for a charge of possessing a prohibited drug if you are:

  1. Licenced or authorised to supply the drug under the Poisons and Therapeutic Goods Act 1966;
  2. Acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study; or
  3. Acting in accordance with a direction given by the Commissioner of Police under section 39RA.
  4. A person to whom the prohibited drug has been lawfully prescribed or supplied to; or
  5. A person who:
    1. Has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and
    2. Had the prohibited drug in your possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply.

WHICH COURT WILL HEAR YOUR MATTER?

This matter is a summary matter and will be heard in the Local Court.

THE DANGERS OF COMPLETING A WRITTEN NOTICE OF PLEADING:

The form seems straight forward and can seem to be an attractive alternative to attending court in person. However using them can be a very bad idea.

It is important to be wary of Police that convey to you that they you can simply complete the written notice instead of attending court. While technically true, it is not advisable. Not only does it reflect poorly on you but you can be convicted and sentenced in your absence with little chance to advocate your case. Read More >

THE CONSEQUENCES OF A CONVICTION:

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for drug possession might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for a drug offence can completely rule out certain career paths such as teaching and a range of government employment options. Drug offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

It is important to get legal advice at an early stage to ascertain precisely what the consequences of a conviction may be and whether you have a defence to the charge.


Types of penalties:

Jail for a possess prohibited drug charge: This is the most serious penalty for a possess prohibited drug charge and involves full time detention in a correctional facility. Read more.

Home Detention for a possess prohibited drug charge: Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive corrections order for a possess prohibited drug charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence for a possess prohibited drug charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order for a possess prohibited drug charge. (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond for a possess prohibited drug charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines for a possess prohibited drug charge: When deciding the amount of a fine for a possess prohibited drug charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10 for a possess prohibited drug charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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