What is Drug Possession Charges and its Penalties?

 

In a town of Pilar situated about sixty kilometres from the capital city of Buenos Aires, Argentina, it is reported that following an inspection of a police warehouse that stored seized drugs, some drugs were discovered missing.

There was six thousand kilograms of cannabis stored in that warehouse for over a period of 2-years.

Out of that 6,000kg of registered cannabis, 5,460kg was discovered and accounted for- leaving 540kg missing!

Following the discovery, when brought before a Judge to provide an explanation for the missing marijuana, a number of police officers blamed it on the mice. Each of them allegedly said that the unaccounted cannabis had been “eaten by mice”.

This would mean that the mice had eaten over one-thousand pounds of weed.

Putting aside the bizarre explanation, forensic experts are at odds with this explanation, telling the Judge the unlikelihood that even a large number of mice would have consumed that amount of marijuana.

A spokesperson for Judge Adrian Gonzales Charvey was reported saying, “Buenos Aires university experts have explained that mice wouldn’t mistake the drug for food, and that if a large group of mice had eaten it, a lot of corpses would have been found in the warehouse.”

A total of 8 police officers as a result have been dismissed from the force. 4 of those officers have been called to appear in court to give evidence. The court will then determine whether the missing drugs were from “expedience or negligence”.

 

The Suspicion

The inventory for the seized cannabis had been left unsigned by the city’s former police commissioner Javier Specia who resigned from his position in April 2017.

He has also been subject to an internal police investigation in respect to the outstanding sworn income statement for 2017 that he is yet to disclose.

It wasn’t until Commissioner Emilio Portero who replaced Specia’s position had realised the discrepancies, that he informed the internal affairs division of the police force, which then led to the warehouse being inspected.

On a related topic of bizarre excuses and explanations, it is reported that a 26-year-old woman from Florida had told police that the cocaine discovered by them in her purse must have flown in through the window.

“I don’t know anything about any cocaine. It’s a windy day. It must have flown through the window and into my purse.”

Interestingly, although she denied any knowledge of the discovered small bag of cocaine, the 26-year-old owned up to possessing the bag of cannabis found in the same vicinity.

A Guide on the Law of Drug Possession in NSW

Possessing drugs is a crime in NSW if the drug is considered a ‘prohibited drug’. Anyone guilty of doing this in NSW will face heavy penalties outlined below (section 10(1) Drug Misuse and Trafficking Act 1985 (NSW)).

A ‘prohibited drug’ in NSW includes cocaine, cannabis, Ecstasy and heroin. A list of prohibited drugs is outlined in schedule 1 of the Act.

Anyone who possesses a prohibited drug in NSW who ends up appearing in the Local Court will face a penalty of up to 2-year imprisonment and/or $2,200 fine. (section 21 Drug Misuse and Trafficking Act 1985 (NSW)).

While courts rarely impose the maximum penalties, they are given to and reserved for the most serious offenders of drug possession.

Having said that, the Magistrate or Judge if convinced can impose a non-conviction sentence as a penalty for drug possession even after pleading guilty to this charge. A non-conviction sentence includes a section 10 dismissal or Conditional Release Order without conviction order. This means that the offender walks away without a criminal record or fine for an drug possession offence.

Penalty Notice (on-the-spot fine) for Possession of Drugs in NSW

Before January 2019, anyone caught with possessing prohibited drugs in NSW were issued by police with a court attendance notice requiring him/her to appear in court to face a Magistrate to either plead guilty or not guilty.

Most people who pleaded guilty would ask the court to extend leniency and impose a non-conviction sentence. Some people get it while others don’t, which really depends on the circumstances and features of each case.

However, as of late January 2019, if a police officer finds you in possession of prohibited drugs in NSW, he/she can issue you with an on-the-spot fine of $400 in the following circumstances:

  • If you are found to possess a prohibited drug if:
    • In the case of ecstasy (MDMA) in capsule form, it weighs no more than 0.25g; or
    • In the case of ecstasy (MDMA) in any other form (other than capsule form), it weighs no more than 0.75g; or
    • In the case of any other prohibited drug, it weighs no more than the ‘small quantity’.

If you are issued with an on-the-spot fine for drug possession, it will put an end to the case if you pay the fine. This will also mean that you won’t be required to attend court. The advantage of this is that you will not receive a criminal record after paying the fine for possessing drugs in NSW.

However, if you wish to dispute the penalty notice for drug possession, you have the option to take the matter to court where, if you court-elect the penalty notice, you will be required to attend court to enter a plea of guilty or not guilty to the charge. The disadvantage of this is that if you don’t get a non-conviction sentence (if you plead guilty or found guilty in court) then you will end up having a criminal record and fine, in addition to being exposed to the Magistrate’s discretion to impose heavy maximum penalties outlined earlier.

However, if you are found in possession of cannabis, a police officer cannot issue you with an on-the-spot fine.

Why? This is because a police officer can, instead issue you with a cannabis caution which means you won’t be required to attend court (and no fine) in the following circumstances:

  • Police found you to be in possession of cannabis weighing 15g or less; and
  • You had it for personal use; and
  • You admit to possessing it; and
  • You’re not subject to any other criminal charge at the time; and
  • You don’t have a previous drug offence on your record, or any previous offence of sexual assault or violence; and
  • You have not been cautioned for drug possession on more than 2 previous occasions.

How to Defend a Drug Possession Charge

If any of the following defence to drug possession apply to your case, your charge will be dismissed in court or even withdrawn by police earlier:

  • If the drugs were found in a car or other common place where people other than you frequent, then you will be not guilty of possessing drugs if there is a reasonable possibility that someone else had the custody and control of the substance found.
  • If the police illegally searched you, your car or your home, then any drugs found as a result can be excluded as evidence in a defended hearing in court. This will mean that you will be found not guilty if there is no evidence of drugs to produce in court.
  • If the drugs were found somewhere you had no knowledge of it being there, then you can be found not guilty if you were not aware of the likelihood of its existence.
  • If the alleged drug found was not in fact a ‘prohibited drug’ then you will be not guilty. This can be confirmed once the drug results come back from the lab.

What are the Elements of a Drug Possession Charge?

If the charge of drug possession is heard in court, the Local Court Magistrate will only be able to find you guilty of this if the prosecution is able to prove each of the following elements beyond reasonable doubt:

  1. You had possession of the prohibited drug in the sense that you had the physical custody and control of it. This means that you had this in such a way that you had the right to exclude all others (who aren’t acting in joint possession); and
  2. You knew of its existence or you were aware of the likelihood of its existence there (or nature of its existence there); and
  3. It is a ‘prohibited drug’

To book a free first appointment with one of our leading Sydney drug defence lawyers call our 24/7 hotline on (02) 8606 2218.

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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