Penalty Notice for Drug Possession (NSW)

In New South Wales, a police officer can issue an on-the-spot fine, known as a penalty notice, if they find a person in possession of a small amount of a drug. The notice requires the person to pay a prescribed amount within a specified period, but the person can opt to have the matter determined by a court. This article explains how the penalty notice systems works for drug possession.

Notices introduced

Section 10 of the Drug Misuse and Trafficking Act 1985 states that “a person who has a prohibited drug in his or her possession is guilty of an offence”. Section 21 states the maximum penalty is a fine of 20 penalty units ($2200) and/or imprisonment for 2 years.

In January 2019, NSW Police were given the power and discretion to issue penalty notice for possession of a small amount of a drug. Prior to this, a person charged with the offence had to appear in court. The introduction of the penalty notice for the offence followed controversy about recreational drug use at music festivals and was designed to prevent first-time offenders from having to attend court.

When is a notice issued?

Under the Criminal Procedure Regulation 2017, a penalty notice, carrying a fine of usually $400, can be issued if a person is found in possession of:

• MDMA/ecstasy in capsule form, .25g or less;
• MDMA/ecstasy in any other form, .75g or less;
• amphetamine, 1g or less;
• methylamphetamine, 1g or less.
• cocaine, 1g or less;
• heroin, 1g or less;
• ketamine, 2.5g or less;
• LSD, .0008g or less,
• GHB, 10g or less.

These drugs are among about 200 illegal drugs, plants, precursors and reagents listed in Schedule 1 of the Act. The schedule also states the different amounts of each drug that make up penalty categories, from small quantity to large commercial quantity.

A penalty notice cannot be issued:

• to a person aged under 18;
• to a person supplying drugs;
• for prescribed restricted substances;
• to a person in possession of more than a small quantity of a drug.

The penalty notice for drug possession is similar to a penalty notice for speeding or a parking infringement in that the recipient has 28 days to pay the fine, will not receive a criminal record and can choose to contest the fine.

Challenging a penalty notice

For a drug possession charge to be successful, the prosecution must prove two elements beyond a reasonable doubt:

1. The illegal drug was in a person’s custody or control, and
2. The person knew they had custody or control of the drug.

Custody describes where the drug is, such as in a pocket or bag. Control describes the person’s right to have or use the drug.

If a person contests the penalty and is found guilty of the offence, the maximum penalty is a fine of 20 penalty units ($2200) and/or imprisonment for 2 years, under the Act. The person also risks having a conviction recorded.

Defences

There are several defences that may be employed when contesting a charge of drug possession. These include:

• police officers found the drug in an unlawful search;
• the person was unaware of the existence of the drug;
• the drug was found in a common area;
• possession was due to necessity or duress (such as when a person is forced to hold a drug under threat of harm);
• the drug proves not to be a prohibited substance or plant.

Cannabis Cautioning Scheme

A person caught with cannabis is not eligible for a penalty notice. Police will normally issue a caution as long as the person:

• has less than 15g;
• admits to having the drug for personal use;
• has no prior drug convictions;
• is not committing another offence at the time;
• does not have more than 2 prior cautions for cannabis possession.

However, penalty notices and cannabis cautions are issued by police at their own discretion. Even for a first offence, a police officer has the right to arrest and charge a person for possessing a possessing a small amount of a drug. This discretion is contained in the Criminal Procedure Act 1986.

For advice or representation in any legal matter, please contact Armstrong Legal.