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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.
In NSW, a court can impose any of the following penalties for a use of prohibited drugs charge.
Under legislation, the offence of Use Prohibited Drug is referred to as Self-administration of prohibited drugs. It is contained in section 12 of the Drug Misuse and Trafficking Act 1985 (NSW) and states:
Examples of Use Prohibited Drug include:
To convict you of Use Prohibited Drug the prosecution must prove each of the following matters beyond reasonable doubt:
The most common ways to defend this charge are:
The offence is a Summary Offence and can only be finalised in the Local Court.
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 >
Home Detention for a use prohibited drug charge: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). 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 (ICO) for a use prohibited drug charge: 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: As a result of amended legislation this penalty was repealed on 24 September 2018. 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 (CSO) for a use prohibited drug charge: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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.
Community Corrections Orders (CCO) for a use prohibited drug charge: A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Conditional Release Order (CRO) for a use prohibited drug charge: A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. 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.
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.