Possession of Prohibited Drugs
The offence of Possession of Prohibited Drugs carries a maximum penalty of 2 years imprisonment and/or a fine of $2,200.
What is Possession of Prohibited Drugs?
The offence of Possession of Prohibited Drug is an offence under section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) which states that:
A person who has a prohibited drug in his or her possession is guilty of an offence.
The following acts constitute Possession of Prohibited Drug:
- Putting a satchel containing Cocaine into your pocket.
- Holding Cannabis in your hand.
- Knowingly carrying around a needle containing GHB.
What Must be Proven?
For a person to be found guilty of Possession of Prohibited Drug the prosecution must prove each of the following matters beyond a reasonable doubt:
- the substance is a prohibited drug; and
- it was in your possession; and
- you knew a prohibited drug was in your possession.
If the prosecution does not prove every single one of the above elements, you will be found not guilty.
Which Court Will Hear the Matter?
This offence is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.
Possible Defences to Possession of Prohibited Drug
The following defences may be available for a Possession of Prohibited Drug charge:
- Duress
- Lawful Authority/Prescription
Common Questions about Possession of Prohibited Drug
Will I receive a criminal conviction?
A conviction and criminal record for this offence is a possibility.
In NSW, a Court can impose any of the following penalties for a common assault charge:
- Gaol Sentence
- Intensive Corrections Order (ICO)
- Community Corrections Orders (CCO)
- Conditional Release Order with conviction (CRO)
- Fine
- Conditional Release Order without conviction (CRO)
- S10A
- Section 10
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 Possession of Prohibited Drug might jeopardise your job or make it difficult to obtain visas for overseas travel.
Will I go to Gaol?
This offence carries a maximum penalty of two years imprisonment. It is unlikely to receive such a penalty where it is your first offence, the quantity of the drug and there are other mitigating factors such as remorse and rehabilitation has taken place.
What does possession mean?
You are considered to be in possession of a drug if it is in your custody, or under your physical control.
What drugs are classified as prohibited?
A list of all prohibited drugs is found in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). Some of the most common prohibited drugs are Cannabis and Cocaine.
Can the police prove the offence if I told them I wasn’t sure what type of drug I had in my possession?
No, the police are not required to prove that you knew what type of drug you possessed.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Emily Wood-Ward
Emily Wood-Ward is a Criminal Lawyer based in Sydney bringing vast experience from working in both public and private practice. She has experience appearing and instructing counsel in the Local, District, Supreme and Coroners Courts of New South Wales. Emily has honed fierce advocacy skills from her experience working with incredibly vulnerable and disadvantaged clients whilst working for the Aboriginal...
