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Use of prohibited drugs

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

10 Practical tips for representing yourself in a drugs charge

In NSW it is an offence to use prohibited drugs.

There is a common misconception that it is not illegal to buy or use prohibited drugs, just to possess or supply them. This myth is not true. While drug possession and supply offences are substantially more common, and in some cases easier for police to prove, there is a separate offence that a person can be charged with if they use or attempt to use prohibited drugs.

The offence is referred to by police and courts as ‘self-administration of prohibited drug.’ A person can be charged with this offence if they swallow, snort, inject, smoke, ingest or otherwise consume prohibited drugs. They can also be charged if they are caught attempting to do any of these things.

The maximum penalty for this offence is 2 years imprisonment or 20 penalty units. This is the same as the offence of Possess Prohibited Drug.

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


THE OFFENCE OF USE PROHIBITED DRUG:

Under legislation, the offence of Use Prohibited Drug is referred to as ‘Self-adminsitration of prohibited drugs’. It is contained in section 12 of the Drug Misuse and Trafficking Act 1985 (NSW) and states:

  • A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.
  • Nothing in this section renders unlawful the administration or attempted administration by a person to himself or herself of a prohibited drug which has been lawfully prescribed for or supplied to the person.

WHAT ACTIONS MIGHT CONSTITUTE USE PROHIBITED DRUG?

Examples of Use Prohibited Drug include:

  • Admitting to police that the cigarette you’re smoking is marijuana;
  • Being found by police about to inject the syringe containing heroin into the inside of your left elbow, below the tourniquet you’re wearing;
  • Smoking ice and posting a video on facebook of you preparing, burning and then inhaling the drug;
  • Being found in a bathroom of a nightclub by police having snorted only half the line of cocaine you’d prepared for yourself; or
  • Being stopped by police for the purpose of a lawful search, grabbing the small bag of MDMA caps you have in your pocket and attempting to swallow.

WHAT THE POLICE MUST PROVE:

To convict you of Use Prohibited Drug the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you administered or attempted to administer a substance;
  • That substance was a prohibited drug; and
  • That you administered or attempted to administer the substance to yourself.

POSSIBLE DEFENCES FOR USE PROHIBITED DRUG:

The most common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that you were not administering or attempting to administer the substance to yourself (although, it is still an offence to be in possession of a prohibited drug, or to administer or attempt to administer a drug to someone else);
  • To argue that the substance was not a prohibited drug;
  • To show that you have a lawfully obtained script for the drug; or
  • To raise necessity or duress as the reason for your conduct.

WHICH COURT WILL HEAR YOUR MATTER?

The offence is a Summary Offence and can only be finalised 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 >


Types of penalties:

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

Home Detention for a use 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 use 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 use 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 use 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 use 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 use prohibited drug charge: When deciding the amount of a fine for a use 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 use 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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