The Offence
The offence of possess prohibited drug is found in section 10 of the Drug Misuse and Trafficking Act 1985 NSW, which states:
A person who has a prohibited drug in his or her possession is guilty of an offence.
What is the maximum penalty for possess prohibited drug?
In NSW, the offence of possess prohibited drug carries a maximum penalty of 2 years imprisonment and/or a $2,200 fine.
The maximum penalty is however reserved for the worst cases of drug possession. In most cases, if a person pleads guilt, they will receive either a fine or a form of good behaviour bond.
A person can avoid a criminal conviction entirely for drug possession. We discuss this in further detail below.
What do the police have to prove for a person to be found guilty of drug possession?
There are three elements which the police must prove beyond a reasonable doubt for a Court to find you guilty of possess prohibited drug. These are:
- That the person possessed a substance;
- That the substance was a prohibited drug; and
- That the person knew you were in possession of the drug;
- That the person had no legal excuse for possessing the drug.
If the police cannot prove each of those elements, then the court cannot find a person guilty of possess prohibited drug.
We take a closer look at some of those elements below:
What is possession?
The legal definition of possession is different to the common day use of the word. The law interprets possession more broadly.
In drug possession cases, a person is in possession if:
- The prohibited drug was in the person’s physical custody (immediate physical possession of the drug); or
- The prohibited drug was in the persons control (the ability to exercise control over the drug, to the exclusion of all other people with the exception of those people acting jointly with the offender); and
- The person knew that they had custody or control over the prohibited drug.
The most first aspect is the common scenario where people are charged with possess prohibited drug is when they are searched by police and the drug is found on their person. Whether the drug in their clothing, such as a pants pocket, or in a backpack, handbag, wallet, purse etc.
Although physical possession is not the only way a person can be guilty of drug possession. The second aspect deals with possession through control. A person will also be guilty of drug possession, if they are able to exercise control over the drug. This is even though they are not in physical possession.
A person can be guilty of drug possession even if they are only in possession of the drug for a very short period of time. For example, holding a bag of cannabis for 10 seconds is enough for a person to be guilty of drug possession.
What if the drugs are found in common area that is shared by multiple people?
If police find a drug in a common area such as a living room, kitchen, or bathroom that is shared by multiple people, if there is no evidence linking the drugs to a specific persons it will be very for anyone to be found guilty of drug possession. This is because the prosecution cannot exclude that the drug belonged to one of the other persons.
What is a prohibited drug?
There is an extensive list of drugs are prohibited in NSW. These drugs can be found in Schedule 1 of the Drug Misuse and Trafficking Act 1985 NSW.
The most common prohibited drugs are:
- Cannabis
- Cocaine
- Ecstasy
- Amphetamines (including ice)
- Heroin
- LSD
- GHB
Knowledge of drug possession
A person must know that they are in possession or control of a prohibited drug in order to be found guilty of drug possession. For example, if someone placed a prohibited drug in a persons bag and they had no idea that it was there, they cannot be guilty of drug possession.
Legal Excuses to drug possession
Currently, the only legal excuse to drug possession relates to medicinal cannabis. If a person has obtained cannabis using a prescription from their doctor, they cannot be guilty of drug possession.
This has raised interesting legal questions, where a person who has a prescription has left the cannabis with a friend by accident.
Do police have to commence court proceedings?
No. The laws in NSW changed in 2019 so that police officers have the discretion to give people on the spot fines for drug possession as opposed to taking them to court. Despite the change in the law, police are still taking people to court in a lot of cases.
Cannabis Caution Scheme
The Cannabis Cautionary Scheme only applies to cannabis. The scheme allows police officers to caution people for cannabis possession instead of charging them with possess prohibited drug.
The scheme only applies to 15 grams or less and it can only be given to a person once. A person will also be ineligible for the Cannabis Caution Scheme if they have been convicted of drug possession in the past.
The Scheme allows police officers to consider the legal and health implications of a person’s cannabis use and the overall triviality of the situation.
Which Court determines possess prohibited drug charges?
Possess prohibited drug charges are determined in the Local Court by a Local Court Magistrate.
Possible penalties for drug possession
If a person pleads guilty to drug possession or they are found guilty the court will then sentence them for the offence.
The most common sentences for drug possession where the persons does not have a criminal record or has a limited criminal record are:
Section 10(1)(a) – no conviction recorded
A dismissal under Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 is the lightest sentence that a Court can impose in NSW.
It means that, despite the court finding the person guilty of drug possession, the Court will let the person go free without giving them a criminal conviction or any other penalty.
Section 9(1)(b) conditional release order without conviction (previously known as a Section 10 good behaviour bond)
A Conditional Release Order is a good behaviour bond. Previously, this bond was known as “Section 10 bond“. The sentencing laws in NSW changed in 2018.
A Conditional Release Order can be given to a person without a criminal conviction. The Order can last for up to two years and it starts from the date of the sentence.
The only mandatory condition of the Order is that the person does not commit any further offences. There are however other conditions that the Court can impose, such as supervision or the undertaking of drug rehabilitation.
If the person breaches the Order, the court can revoke the the Order and re-sentence the offender to a harsher form of punishment, including a criminal conviction.
Section 9(1)(a) conditional release order with conviction
This good behaviour bond is identical to the one above, except that it comes with a criminal conviction. It otherwise comes with the same terms and conditions.
Fine
Recent statistics indicate that the most common penalty for an offence of possess prohibited drug is a fine. The average fine being $300.
In NSW a court cannot give someone a fine without giving them a criminal conviction.
If the Court decides that a fine is the most appropriate sentence, the court is required to consider the persons current financial situation and their ability to pay a fine.
Other sentences that the Court can impose for drug possession
In more serious cases of offending or repeat offending the Court may consider imposing harsher forms of punishment including Community service orders (CSO), Intensive Corrections Orders and in the worst case a term of imprisonment.
Avoiding a criminal conviction for possess prohibited drug
There are many factors which the Court must consider when determining whether or not to record a criminal conviction. This includes both the objective circumstances of the offence and the subjective circumstances of the person.
Objective seriousness in drug possession cases
Objective seriousness is one of the most important factors in deciding whether or not to impose a criminal conviction. This involves the court comparing the particular case of drug possession with other cases of drug possession in order to determine how seriousness the offence is. Some of the factors the court will consider includes:
The more the drug weighs the more serious the offence will be. Often, police will weigh the drugs with its packaging and this can increase the weight significantly. If this is the case it is important that the lawyer requests for the drugs to be weighed without the packaging.
- The reason the person was possessing prohibited drugs:
The reason the person was possessing the drug can be a critical factor. For example. someone who uses drugs to ease pain or to help them deal with mental health problems is generally considered to be less serious than people who use it just for fun.
- The amount of planning involved in the drug possession:
A person who has a long time to think about their actions, is considered to be more serious than for example, someone who makes a drunken spontaneous choice at the pub.
- The persons co-operation with the police
If a person co-operates with police and assists their enquiries the court must take that into account when sentencing them. This also includes any admissions a person made to the police.
Subjective considerations in drug possession cases
These are the personal circumstances of the offender. These are equally important as objective seriousness. Some of the most common subjective factors are:
Young people are generally given more leniency due to their immaturity. People who are older than 30 are generally expected to know better.
If a person does not have a criminal history or has minimal criminal history, they are generally treated more leniently by the courts.
- Education and employment:
Education and employment are also matters that the Court must consider. Especially if there is a risk that the person might lose their job or career if they are convicted.
The Financial circumstances of a person is relevant. Especially, if the court chooses to fine the person.
- The persons attitude and whether they have shown remorse:
A persons attitude towards their offence of drug possession is very important. A person will need to show the court that they regret their actions, that they are sorry and importantly that they wont do it again.
- Whether the offending is out of character:
Showing the Court that the drug possession is out of character also helps. However, it is not a good idea to tell the court that it is your first time using drugs if that is not true.
Thousands of people come before the court and somehow they all say that it is their first time. Not surprisingly, courts appreciate honesty. It also shows a genuine willingness of the person to change.
- Whether the person plead guilty:
Pleading guilty at an early stage is also a matter that the court must take into account for drug possession. This is because it shows acceptance and willingness to facilitate justice. The court is also obliged to give people who plead guilty early a 25% discount on their sentence.
- Whether the person has undertaken rehabilitation:
Rehabilitation is one of the most important factors in drug possession charges. We discuss this in more detail below.
- Whether the person has stopped using drugs;
Abstinence from drug use is also crucial in avoiding a criminal conviction for drug possession. It shows the court that a person is genuine about change.
Undertaking rehabilitation
Rehabilitation is possibly the most important factor when trying to persuade a court not to record a criminal conviction.
Undertaking rehabilitation is not suggesting that the person is a drug addict or that they have a drug problem. It however shows the court, that a person has taken the offence seriously and that they have educated themselves about drugs in the community.
The following are some common forms of rehabilitation:
Seeing a psychologist
If the persons drug use is linked to their mental health, it is vital to show the court that the underlying mental health issues are being dealt with through professional help.
People can access free psychological help in NSW through a Mental Health Care Plan.
Self-Management and Recovery Training (SMART Program)
The SMART Recovery Program is a voluntary program that provides counselling, guidance, and education about the dangers of drug use and the problems that it causes to the wider community.
The Program is run all over NSW and there are sessions spread throughout the week both in the mornings and evenings.
There is no minimum amount of sessions that need to be completed, however it is recommended that 3 or more sessions are completed in a consistent manner.
To find out more about the program visit their website at https://smartrecoveryaustralia.com.au/find-meetings/
Attendance at a drug rehabilitation program
There are number of different programs that are aimed at drug rehabilitation, they include both private and public programs. Some last for a single day and others can occur over a number of weeks. An internet search is the best way to find a suitable program near you.
Attendance at a residential drug rehabilitation
In the most serious cases of drug addiction, offenders should consider going to a full time residential drug rehabilitation program. Some common rehabilitation centres include:
Magistrates Early Referral in to Treatment (MERIT)
The MERIT program is designed for people with drug problems who are not in prison and can benefit from rehabilitation and treatment.
Successful participation in the MERIT program must be taken into account by the Court when determining an appropriate sentence. The court will receive regular reports regarding the person’s progress throughout the course of the treatment until the court case is finalised.
What else do I need to prepare for my sentence?
Obtain character references
Character references written by friends, family members or work colleagues can show the court that the person is of good moral character.
The references can also express to the court that the offender’s actions were out of character. The letters can also help shed light on the attitude of the person and whether they have shown remorse and regret.
Write a letter of apology
Writing a letter of apology is extremely important in drug possession cases. The letter should be addressed to the court.
The letter should express genuine remorse and regret. It can also detail the persons personal circumstances, including the topics that we discussed above. Importantly, it should detail the impact that a criminal conviction will have on the person.
Why should I choose Australian Criminal and Family Lawyers for drug possession?
Our highly experienced Sydney Criminal Lawyers are experts at dealing with possess prohibited drug charges. We appreciate how important it is for our client’s to avoid the burden of a criminal conviction in drug possession cases.
Our familiarity and knowledge of the laws on drug possession are second to none which means that you can rest assured that you are getting Sydney’s Best Criminal Law team on your side.
Our lawyers are ready to take calls 24 hours, 7 days a week. Call us now on 1300SILENT (1300-745-368) or alternatively 0448 142 113 to get immediate legal advice.
