The Law on Possessing Drugs in NSW

 

It is reported that a 23-year-old woman from Louisiana has been found with drugs that were allegedly located in her vagina following a cavity search.

Reportedly, authorities discovered “a clear plastic bag” of about 1 gram of methamphetamine in addition to $6,233 cash in Ashley Rolland’s vagina.

A female correctional officer reportedly discovered the cash rolled up inside her vagina, consisting of sixty-two $100 notes with $33 consisting of a combinations of 10s, 5s and 1s.

Following the find, Rolland has claimed that she didn’t know how the drugs got there. The 23-year-old woman has denied ownership and knowledge of it.

It wasn’t until a man who Rolland had been living with for a short time had reported to police that she stole about five-grand of cash before leaving.

The ownership of the further $1,233 found from her isn’t yet clear.

The man, Eugene Dix, complained that she had taken the money from his dresser while he was taking a shower. He informed authorities that Rolland had left by the time he returned to his room by which time he discovered that the money was missing from his bedside table.

Rolland later made admissions to stealing the money and consented to being searched by a female correctional centre. She continued to deny any knowledge of the drugs that were found from inside her vagina, claiming she has no idea how it got there.

There has been no explanation given to authorities as to how the drugs made its way there.

On 31 July 2019, Rolland was found and arrested for a stealing charge in addition to possessing a controlled dangerous substance.

People try many ways in concealing drugs, some more creative than others.

Another case at point is when a Colombian man who was traveling to Barcelona was stopped by police after observing the man to appear nervous. He was approached and questioned, but during the questioning, Spanish police noticed the man’s hair piece that he was wearing underneath his hat appeared unusually large.

After a closer look, it was discovered that he had a package stuck to his head consisting of cocaine.

The Law on Possessing Drugs in NSW

In NSW, it’s a crime carrying a criminal conviction and imprisonment to have physical custody or control of a prohibited drug if you had knowledge that it was in your physical custody or control.

Section 10(1) Drug Misuse and Trafficking Act 1985 (NSW) prohibits the possession of prohibited drugs with a maximum penalty of 2-years prison and/or $2,200 fine.

These penalties and a criminal conviction will be completely avoided if a Magistrate or Judge in court imposes a non-conviction penalty as a sentence, such as a section 10 dismissal or Conditional Release Order without conviction.

Click here on an outline on how you can avoid a criminal conviction after pleading guilty in court.

Click here for a list of all the prohibited drugs in NSW.

What Does it Mean to Have Physical Custody or Control?

Physical custody of something is when you have it in your immediate physical custody where you are able to exercise exclusive control over it to the exclusion of all others not acting in concert with you.

On the other hand, you will be considered to have control of something if you have the exclusive control over it to the exclusion of others not acting in concert with you. Having control of something includes a situation where the thing in question is found in another location other than on your person (i.e. in your pocket or hand).

To have possession of a prohibited drug, therefore means that you are also required to have knowledge of the drug in order to have the requisite physical custody or control over it.

If you have no knowledge of the prohibited drug, then you generally cannot be guilty of possessing a prohibited drug in NSW.

Under the law in NSW, you will be considered to have possession of a prohibited drug if you either:

  • Had knowledge of its existence there; or
  • You are aware of the likelihood of its existence there.

Sometimes, a person accused or found with prohibited drugs will argue the defence of having no knowledge.

In such cases, he/she can be found to have been aware of the likelihood of its existence or knowledge of it if the court can make inferences from the circumstances. For example, where the drugs are found in a wallet that belonged to you.

What if Drugs are Found in a Car or Common Area of a Home?

It gets tricky when prohibited drugs are found in a car not owned by you or a common area of a home or building you frequent, also shared by other people who frequent it too.

In such cases, for you to be guilty of possessing prohibited drugs that are found in a common area, the prosecution is required to exclude the reasonable possibility that a person or people other than you had (or intended to) exercise control over it to the exclusion of others not acting in concert.

On-the Spot Fines for Possessing Prohibited Drugs in NSW

Similar to drink driving penalties, NSW police can issue offenders of drug possession with a $400 on-the-spot fine (penalty notice).

The police are given this power under Schedule 4 Criminal Procedure Regulation 2017 (NSW).

Payment of this fine will not result in a criminal conviction, in which case it will put an end to the case without the requirement to attend court.

However, police can only issue an on-the-spot fine for drug possession offenders who possess a prohibited drug, where the drug is Ecstasy in capsule form (with a weight of less than 0.25g) or where the Ecstasy is in another form (with a weight of under 0.75g), or where it is any other prohibited drug (with a weight of less than the small quantity).

If you wish to dispute the on-the-spot fine, you may court-elect it. This will result in you being required to attend court and enter a plea of either guilty or not guilty before a Local Court Magistrate or Judge.

If the Magistrate or Judge gives you a non-conviction sentence, you will not receive a fine or criminal conviction. however, the Magistrate or Judge can impose a variety of heavy penalties, with up to a maximum penalty of 2-years imprisonment and/or $2,200 fine. This includes a criminal conviction.

Click here for an outline of the Drug Possession Defences in NSW.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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