Law and Penalties for Possessing Cocaine in NSW

It’s reported that a 5-year-old school boy attended his kindergarten class with a bag of cocaine.

Last week, the 5-year-old boy showed the cocaine to his teacher at the Lawrence Elementary School in Massachusetts, USA.

When showing the drugs to his teacher, it is reported the boy also told the teacher that he puts the powder in his mouth, and it makes him “Feel like spider-man”.

The bag of cocaine the boy showed his teacher was still sealed, suggesting the boy had not used it.

The teacher immediately notified the Principal of the school before police and ambulance were contacted, who attended the school.

The boy was subsequently taken to the nearby hospital.

Police later attended the boy’s home where the boy’s father was found asleep with bags of cocaine and heroin that was also discovered around the home.

A further child and the children’s mother also resided in the home. Both children have been removed from the home and relocated with child services.

The children’s father has been arrested and charged.

Law and Penalties for Possessing Cocaine in NSW

There have been some significant changes to the laws on drug possession in NSW of recent time.

There have also been calls for NSW to introduce pill testing. Click here for an outline on ‘what is pill testing and the law in NSW’.

Currently in NSW the law allows police the option to give out on-the-spot fines instead of criminal charges to people caught possessing small amounts of prohibited drugs.

This means that for certain people caught with possessing prohibited drugs in NSW, police can now issue a penalty notice carrying a fine with no criminal conviction.

There is a $400 on-the-spot penalty notice fine for possessing a prohibited drug in NSW if, and only if:

• The prohibited drug (except for cannabis lead) is categorised as no more than the ‘small quantity’ for that drug; or
• Where the drug is Ecstasy (MDMA) not in capsule form, and it weighs less than 0.75g; or
• Where the drug is Ecstasy (MDMA) in capsule form, and it weighs no more than 0.25g.

The on-the-spot fine can be issued by police under section 333 Criminal Procedure Act 1986 (NSW).

The on-the spot fine can be disputed by court electing the penalty notice. Doing this will result in a court date that the person will then be required to attend to plead either “guilty” or “not guilty” in-front of a Magistrate in the Local Court.

Paying the on-the-spot fine will not result in a criminal conviction, but the same is not necessarily true if the charge is heard in court.

On the one hand, the Magistrate in Court may impose a sentence without a criminal conviction and no fine for drug possession (section 10 non-conviction penalty). This can occur if a finding of guilt is made by the court or plea of guilty is entered in court for drug possession.

On the other hand, the Magistrate in Court may impose a maximum penalty of $2,200 fine and/or 2-years imprisonment for a drug possession offence. This is outlined in section 21 Drug Misuse and Trafficking Act 1985 (NSW).

It is a crime carrying a penalty of up to 2-years gaol and/or a max penalty of $2,200 fine for drug possessing in NSW under section 10 Drug Misuse and Trafficking Act 1985 (NSW).

A court will find a person ‘guilty’ of drug possession in NSW if each of the following elements are proven beyond reasonable doubt:

• The person accused had possession of a prohibited drug.
• The person accused had knowledge of the existence of where the drug was discovered.

What does possession mean under the law? This includes where the accused person had the physical custody or control of the drugs to the exclusion of other who are not acting with him/her (that is, not acting in concert).

To know that the drugs were where it was found means that the accused person is required to at least have been aware of the likelihood of the existence of the drugs from where it was discovered.

What are some defence to a drug possession charge? This includes duress or necessity; the drugs were discovered by police as a result of an illegality by police i.e. illegal arrest or illegal search; where there is a reasonable possibility that someone other than the accused person had possession of the drugs.

The last defence referred to can occur if the drugs were found in a car or home where other people also frequent. This fact can raise the reasonable possibility that the drugs were someone else’s unless the prosecution is able to exclude such a reasonable possibility beyond reasonable doubt.

Have a question on the law on possessing cocaine in NSW?

Contact our friendly team at CDLA to arrange a free consultation in person or over the phone now.

Our criminal lawyers are based in Parramatta and Sydney who specialise in drug law across all courts.

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