This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Drug Possession Charges


In New South Wales, the offence of possessing a prohibited drug carries a maximum penalty of two years imprisonment. The offence of drug possession is contained in section 10 of the Drug Misuse and Trafficking Act 1985. This article outlines the other penalties that can be imposed for this offence, what must be proven and possible defences.

What drugs are illegal to possess?

There is a very long list of drugs that are illegal to possess. The most common examples include:

  • Cannabis
  • Ecstasy
  • Amphetamines
  • Cocaine
  • Heroin
  • LSD

What is a Prohibited Drug?

In the Schedule of the Drug Misuse and Trafficking Act there is a long list of drugs that are illegal to possess. Under the Act, there is also another category of substances known as “restricted substances”. Restricted substances include drugs that you can get with a prescription (such as Xanax, or steroids), and chemicals that you need a licence to possess. Possessing those substances without authority is a different and generally less serious offence.

What the police must prove

Police need to prove the following beyond a reasonable doubt for the court to find a person guilty of this offence:

  • That they possessed a substance
  • That the substance was a prohibited drug
  • That they knew they were in possession of that substance

Possible Defences

A person charged with possession of drugs may validly argue any of the following defences.

Honest and reasonable mistake

A person would not be guilty of an offence if they had an honest and reasonable belief that the substance they possessed was a legal substance.

The Carey Defence

The Carey Defence is a defence that applies when a person was temporarily in possession of someone else’s drug.

Duress

A person is not guilty of a drug offence if they were acting under duress. This means that a serious threat was made to their life or the life of another person and they carried out the act only in response to that threat.

The drug was not an illicit drug

The accused will be found not guilty if the prosecution cannot prove that the drug was the drug alleged. This must be done through testing and analysing the drug. An unbroken chain of possession much be proven to have occurred while the drug was in the police’s possession ie there was no opportunity for the drug to be tampered with or mixed up with another sample.

What court will hear your matter?

If the only charge the accused is facing is possession of a drug, then the matter will be decided in the Local Court. However, people charged with possession are often also charged with supplying a prohibited drug which is an offence that has to be decided in the District or Supreme Court.

Penalties

The possible penalties are outlined below.

Section 10 – avoiding a criminal record

Normally, when you plead guilty to a criminal or traffic 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 were able to convince the court not to convict you, there would be no penalty of any type and no criminal record. In all criminal cases a court has the discretion not to convict you but deal with you under the terms of section 10.

Fines

By far the most common penalty imposed by the Local Court is a fine. When deciding the amount of any fine the Magistrate or Judge should consider your financial situation and your ability to pay any fine they set.

Good behaviour bonds

A good behaviour bond 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 5 years.

Community service order

A Community Service Order (CSO) 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. Certain medical conditions could exclude you from being suitable to undertake a work order.

Suspended sentence

A suspended sentence (Section 12 good behaviour bond) is a gaol sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the gaol sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to 2 years.

Periodic Detention

Periodic detention is a form of imprisonment. It involves detention in a periodic detention centre for a two day period each week for the length of the sentence set by the court. The two-day period commences at 7.00 pm on the day of the week specified (usually Friday) and ends at 4.30 pm on the second day following the day so specified (usually Sunday).

Prison

This is the most severe form of punishment and involves being locked up in a prison. Before a court imposes a prison sentence it must be satisfied that no other penalty other than imprisonment is appropriate.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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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