Drug Possession Charges in NSW

In New South Wales, 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.

Legislation

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. However, 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 trafficable 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 trafficable quantity of a drug, it is presumed that you possessed 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

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 straightforward and it may appear to offer an attractive alternative to attending court in person. However, using it can be a very bad idea.

It is important to be wary of police who encourage you to 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 >

What Are The Penalties for a Drug Possession Charge?

The penalties for a drug possession charge include  imprisonment, including home detention, intensive correction orders, suspended prison sentences, community service, good behaviour bonds and fines.

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