The Law and Penalties for Drug Possession in NSW

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$7 billion dollars per annum is spent on illicit drugs by Australians, according to The Age.

In fact Dr. John Jiggins, trade researcher estimates that approximately three million Aussies purchase prohibited drugs and that the drug market is worth approximately seventeen billion dollars.

Drug related harm is a concerning issue all over the world, however, there is an increasing concern in the lethal ingredients and level of dosage mixed with methamphetamines in particular.

Substances mixed with lethal ingredients or chemicals are sold regularly on our streets from the ‘black market’.

There were 2 deaths in last month’s Defqon.1 music festival. One hundred and fifty four people were charged with drug possession offences while five were charged with drug supply offences at the Listen Out Festival in Sydney over the weekend at the Centennial Park in Randwick. There were thirty-four thousand attendees to this event.

There have been many other drug-related deaths caused from overdoses due to the substance that users believe they are taking actually include mixtures of other lethal and/or high dosage chemicals.

For example, in February 2018, there was a mass drug overdose from a group of students from the Saint Stephen’s College in the Gold Coast that resulted in seven boys being rushed to hospital. The drug consumed was believed to actually be an illegal anti-anxiety medication producing similar effects to GBH (known as a party drug).

NSW has still not taken the step of even trialling pill testing, which has extensive benefits demonstrated from others who have trialled it around the world and from research.

It’s time now for NSW to take preventative measures by introducing pill testing and safe environments for our youth who decide to consume drugs. Every life matters, and if this can save even one life, then introducing these measures is arguably worth giving a try.

Table Of Contents

The Real Issue on Drugs in Australia
What is Pill Testing?
Advantages and Disadvantages of Pill Testing
The Law and Penalties for Drug Possession NSW
Drug Possession On-The-Spot Fines
Defences to Drug Possession Charges
Holding Drugs for a Friend
What if Drugs are Found in a Car?

The Real Issue on Drugs in Australia

The Australian Bureau of Statistics show that between 1979-1999 drug-related fatalities skyrocketed by seventy nine percent. Eighty one percent of the almost two thousand drug-related deaths in 1999 were accidental, sixteen percent were suicide deaths and only three percent were not determined.

This suggests that one substance over another is not necessarily more dangerous.

The concerning issue isn’t whether the drug is ecstasy, amphetamine or LSD, rather, the danger and concern is the mystery in what other potentially lethal dosage & ingredients that go into them and the environment people are consuming them in – peer pressure and ignorance as to potential lethal chemicals in the substance.

We are spending more of our taxpayer’s money on enforcing the law than taking preventative measures and treatment. The current policies on prohibiting drugs in Australia clearly hasn’t been effective as young people are continuing to use with the ignorance of what is actually contained in them. This is costing young lives.

Irresistible conclusion is that the only way we can address the real issues surrounding drug-related harm is pill testing- which has been demonstrated to work.

What is Pill Testing?

Pill testing is drug checking, so that the actual ingredient(s) in the substance a person intends to take can be disclosed.

The purpose of this is to test for any harmful chemicals without the threat of facing criminal charges in order to reduce drug-related harm and save lives.

Geoff Munro, the policy manager at the Alcohol and Drug Foundation believes that drug checking will reduce the overall rate of drug consumption at music festivals and save lives. He also said, “when people are buying pills and powders on the street they can never be sure what is in them. Very often people are playing Russian Roulette. It may be a highly dangerous chemical, or it may be a much stronger drug that they believe it is.”

On a practical level, a participant can provide a sample of his/her substance to a volunteer who will analyse it to disclose if there are any life-threatening chemicals in it. At the conclusion of the pill test, the participant of the pill test will also be given details about any side effects of the substance they were intending on consuming. This helps in making an informed decision as to whether or not to consume the drug. Research suggests that this will reduce overdoses through modifying people’s behaviour.First Ever Pill Testing Trial at an Australian Music Festival in Canberra

Australia’s first ever pill testing trial was the ‘Groovin’ The Moo in 2018 at Canberra, ACT. It was a success.

Over 80% of attendees at the Groovin The Moo festival took part in the first ever pill testing trial in Canberra, who mistakenly believed they were taking MDMA (ecstasy) while less than half of their samples for pill testing contained ‘relatively pure MDMA’

During this trial, 2 life threatening substances linked to overdoses in New Zealand and Europe were discovered. One of those substances were not previously known to be available in the ACT. This knowledge was shared amongst health authorities immediately which allows paramedics and police to be better prepared.

The ACT Ambulance’s Toby Keene said, “other than possibly an increase in the amount of illicit substances discarded, there is no evidence of decreased presentations to site health services… though security reported a number of pill bags discarded on site. This is unusual in my experience and likely attributable to the pill testing.” 43% of attendees at this festival expressed that pill testing will likely change their behaviour.

Dr. David Caldicott, senior lecturer at the ANU medical school and member of the Calvary hospital emergency unit says, that there are two things that changed young people’s minds about drug taking: “the idea that what they’re taking could kill them and the idea that they’ve been ripped off.”

In fact, research from overseas demonstrates that drug checking can change potential user’s decision whether or not to take drugs which will prevent harm.

Former Australian Federal Police Commissioner Mick Palmer has been urging the NSW Premier Gladys Berejiklian and others opposed to pill testing to reconsider their stance. “History has shown, like with sex education, abstinence doesn’t work, but if you educate young people, you will have lower rates of teen pregnancies… So, too, with drugs; if you have a strategic and open policy that is not based on zero tolerance, you will have lower rates of drug use.”

The argument against pill testing is the fear that it will encourage people to consume drugs under a belief that the drugs are safe, which is not the kind of message that should be sent to the community.

The truth is that there is no evidence to suggest that pill testing encourages drug use. In fact, Britain and Europe have been pill testing for many years yet there has been no evidence to suggest that it has encouraged or increased drug consumption.

Pill testing in Australia has only been trialled in the ACT.

Advantages and Disadvantages of Pill Testing

Arguably, pill testing should be testing for the following reasons:

There is evidence to suggest that it can change the black market. Where dangerous chemicals found will end up leaving the market due to pill testing.
It changes behaviour where bad results from pill testing is likely to deter people from using drugs. This is also likely to cause these people to tell others about the harmful ingredients that were found, and this serves as a general deterrent.
Pill testing creates opportunities for spreading support and information about the harmful nature of drugs.
It allows for the discovery of lethal new substances that enter the market. This allows for warnings to be issued to the community where health care providers are better prepared.

On the other hand, pill testing has been opposed by others for the following reasons:

On-site pill testing isn’t always accurate.
The pill testing kits used on-site are limited to what they can detect.
On-site pill testing devices are unable to test the concentration and high doses of ecstasy and methamphetamine.
On-site pill testing kits cannot detect new designer substances on the market, this includes NBOMe or N-Bomb which has already been linked to three deaths in 2017.
Pill testing can leave people with false sense of security that party drugs may be safe to consume.

The Law and Penalties for Drug Possession NSW

You will face up to 2 years imprisonment and/or a fine of up to $2,200 if guilty for a drug possession charge in NSW under section 21 of the Drug Misuse and Trafficking Act 1985 (NSW).

A person accused can only be guilty of a drug possession charge in NSW if police can prove each of the following elements to the charge under section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW):

A substance was found on the person which was a prohibited drug under the law; and
The accused person who the substance was found on had physical custody or control of that substance; and
The accused person either knew it was there or was at least aware of the likelihood of its existence from where it was found.

If the police are unable to prove each of those 3 main elements of a charge for drug possession, then the person charged will be not guilty. The charge will then be dismissed.

Drug Possession On-The-Spot Fines

Drug Possession is now a penalty notice offence in NSW, outlined in schedule 4 Criminal Procedure Regulation 2017 (NSW).

What this means, is that if you are caught with possession of prohibited drugs by a police officer, there is a discretion for the officer to instead of issuing you with a drug possession charge and ‘court attendance notice’ to appear in court, he/she can issue you with a penalty notice (on-the-spot fine) of $400 if:

You’re found with the possession of a prohibited drug; and
In the case of MDMA/Ecstasy in the form of a capsule, weighs 0.25g or less; or
In the case of MDMA/Ecstasy in any other form, weighs under 0.75g; or
In the case of any other prohibited drug, weighs the ‘small quantity’ or less.

The on-the-spot fines can be issued at the discretion of police.

What happens if police don’t issue an on-the-spot fine for drug possession? If an on-the-spot fine isn’t issued for drug possession, the police will usually issue you with a ‘Court Attendance Notice’ for drug possession which is a criminal drug charge. You will then be required to attend Court to plead guilty or not guilty where the Court can impose a criminal conviction and other heavy penalties if you are found guilty or plead guilty, unless you are given a section 10 dismissal non-conviction or non-conviction Conditional Release Order by the Magistrate.

What happens if police issue an on-the-spot fine for drug possession? If an on-the-spot fine is issued to you for drug possession, you have the option to pay it, in which case you will not end up with a criminal conviction. If you which to contest it, you can choose not to pay the fine and elect to go to court over the penalty notice allegation. The ‘court election’ option will be outlined on the back of the penalty notice.

If you court-elect, you will end up receiving a court date and be required to attend court for a drug possession allegation. You will then be required to enter a plea of guilty or not guilty where the Court can impose a criminal conviction and other heavy penalties if you plead guilty or are found guilty, unless the Magistrate is convinced to give you a non-conviction order.

On-the-spot fines do not apply to people in possession of cannabis as there is already the option for police to issue a caution to people in possession of this in certain circumstances.

Defences to Drug Possession Charges

You will have a defence to a drug possession charge where you will be found not guilty if either of the following defences apply:

In the circumstances of the case, you didn’t believe that there was a significant (or real) chance of the drug being where it was found;
If the police found the substance on you from conducting an unlawful search (without a warrant). An unlawful search can occur where the police officer who decided to search you without a warrant searched you in the absence of forming a reasonable suspicion that you had an illicit substance on you.
Where the police cannot exclude the reasonable possibility that someone other than you had custody or control of the drugs. This is a common defence where drugs are found in a common area of a house or building.

Holding Drugs for a Friend

You will be not guilty for a drug supply charge if you were holding a prohibited drug for a friend only to return it back to that person.

However, you will still be guilty of possessing a prohibited drug in NSW if you were simply holding it for a friend to return later.

What if Drugs are Found in a Car?

Each case will depend on its own facts and surrounding circumstances, however, generally you cannot be guilty of possessing prohibited drugs in NSW if you were a passenger in a car where the car was not owned by you if:

You knew the drug was in the car, but you did not have exclusive custody and control of the drugs to the exclusion of all others in that car; or
You didn’t know of the existence of the drug from where it was found in the car.

Our drug lawyers appear in all courts with extensive experience and expertise in drug charges. We are available 24//7 for a chat if you wish to further discuss anything arising from this blog. As a guide, if you wish to get guidance in how to draft a drug offence character reference.

Published on 03/10/2018