The Penalties of Drug Possession and How You Can Reduce Your Sentence

By Sahar Adatia and Jimmy Singh

 

Australian singer-songwriter Shannon Noll – better known as “Nollsy”, the former Australian Idol contestant who accidentally went viral becoming a living internet meme, and the guy who unleashed an expletive-laden rant at a concert-goer at the Duck Creek Races in Nyngan NSW back in July – last week escaped criminal conviction in a Sydney court after pleading guilty to one charge of drug possession.

On 11 October 2018, Noll appeared at Sutherland Local Court for sentencing, after he was caught by police with 0.53 grams of cocaine at Caringbah Hotel in Sydney’s southern suburbs back on 13 September. The illegal drug was found on the 43-year-old in a clear, resealable bag.

The former Australian Idol runner-up pleaded guilty to one count of possessing a prohibited drug in with the hope to escape a criminal conviction.

Noll managed to avoid a criminal conviction and was instead placed on a 12-month good behaviour bond with a conditional release order.

Noll’s Case for Avoiding Criminal Conviction for Drug Possession

According to Magistrate Glenn Walsh, Noll had been suffering from severe clinical depression and never completely overcame the death of his father Neil in a farming accident in 2001.

He also acknowledged that Noll had fallen from his “high perch” and suffers a “severe case” of depression, concurring with the character references for the Australian Icon provided by farmers and celebrities, including renowned radio host Kyle Sandilands, who called him a “great man”.

“He’s never really gotten over the death of his father,” Magistrate Walsh said as he imposed the good behaviour bond.

The magistrate also accepted that Noll had previously endured suffering as a consequence of the media publicity that the charge hauled. Noll’s counsel contended that the singer’s career had deteriorated, and he had lost at least two jobs since the news of the drug possession charge went public.

Meanwhile, the court also heard that the musician donated an estimated $1 million to charity.

Magistrate Walsh finally declared that registering a conviction against Noll would be “going too far” and would only serve as an unfavourable obstacle in the performer’s attempt to get his life back on track.

“Frankly, his status as a singer has little to do with this case,” Magistrate Walsh said.

Following the hearing, Noll appeared outside the court giving a short statement to the media, stating, “I’d just like to thank the judge… and [I’m] just looking forward to putting this behind me and getting back to work.”

Drug Possession Penalties NSW

In NSW, drug possession is illegal. It is not necessary for the prosecution to prove that you owned the drugs – merely holding them for a friend can mean you are still guilty with this offence. The prosecution simply needs to prove that the drugs were under your possession in the sense that you knew of its existence and within your custody or control.

The offence of possessing a prohibited drug is outlined in Section 10 of the Drug Misuse and Possession Act 1985. It states that “a person who has a prohibited drug in his or her possession is guilty of an offence.”

In NSW, a drug possession charge is considered very serious and carries a maximum penalty of 20 penalty units which is a fine of $2,200, and/or two years in jail.

The penalty for a first-time offence for drug possession is usually less severe than an offender who commits this crime for a second time.

In NSW, drug possession is one of the most common offences dealt with in local courts.

Click here on a guide of how to avoid a conviction after pleading guilty to a drug offence.

What Must be Proven for You to be Guilty of Drug Possession in NSW?

In order to be guilty of possessing a prohibited drug in NSW, police must prove each of the following elements of the crime:

  • You had the physical custody or control of a prohibited drug to the exclusion of all others; and
  • You knew that the substance was there, or you were aware of the likelihood that it was there (being where it was found).

For example, a strong inference can be drawn that you knew of the existence of the prohibited drug from where it was found if it was found in your wallet located from a pocket of your clothing (that you were wearing at the time).

You can be guilty of possessing prohibited drugs in NSW if the prohibited drug was found at a location other than on your person. This can occur if there is enough evidence to prove that you had the control of that substance to the exclusion of all others.

Put another way, this means that you can still be guilty if the drugs were found at a location you were not present on if there is enough evidence to prove that you were able to go to that location without physical bar in order to obtain manual possession of it.

You can also be guilty for having joint control or custody of a prohibited drug if you and another person are found to have had the exclusive custody or control of the substance to the exclusion of all others.

What are the Defences to a Charge of Drug Possession in NSW?

A drug possession charge in NSW will be dismissed in court if any of the following defences apply:

  1. The substance found is not in fact a ‘prohibited drug’ under the law.
  2. You had no knowledge that the drug was where it was found.
  3. You didn’t think that there was a real (or significant) chance that the drug was at the location that it was found in.
  4. Where the drugs are found in a location frequented by other people such as a common area to a building or house, you will be not guilty if there is a reasonable possibility that someone other than you (or someone acting in concert with you) had the control or custody of the drug. You will be not guilty if the prosecution is unable to exclude this reasonable possibility beyond a reasonable doubt.
  5. If the drugs were found as a consequence of the police doing an illegal search or arrest. If the illegality of for example a search or arrest is established, then the remaining evidence obtained as a result can be excluded as evidence in court.
  6. Duress or Necessity.

What is the Impact of a Criminal Conviction of a Drug Possession Offence?

A criminal conviction for a drug possession offence can have a serious impact upon your career prospects and your freedom to travel to many countries in the world.

In particular, there are many career paths such as teaching and a range of government jobs that may require you to hold no criminal convictions, and thus a drug possession conviction may jeopardise your career prospects by entirely ruling them out.

Similarly, drug possession offences may make it problematic to obtain visas for overseas travel.

In Australia, for example, you are required to apply for a visa to travel to certain countries, including the US, Canada, China and Indonesia. When applying for a visa, you will be required to disclose your criminal record, and depending on the particular country and its policies, a conviction may refuse your entry into its territory.

How Good Character References for Drug Possession Charges Can Help You

As the case of Shannon Noll highlights, when it comes to charges of drug possession, a well-written good character reference can considerably improve your chances at avoiding a criminal conviction.

A good character reference is an opportunity for you to express to the court more about you as a person in order to increase your chances at receiving a less harsh penalty or a sentence that avoids a criminal conviction.

When it comes to drug offences, the chief areas to address include your good character, your remorse, your insight, and the impact of a conviction on your career.

You can provide the court with more than one reference, however more than four should be avoided. Equally, your references should be written by people who have a good reputation and no criminal record themselves. They may be your employer, doctor, family member, friend, and member of a group or organisation that you are associated with.

Ultimately, the referee should be someone who is able to provide details of your good relationships within the community, about your exemplary character, and your performance at work.

For a guide on this, see drug offence character reference.

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