Drug Possession – s 10(1) Drug Misuse and Trafficking Act 1985
Our Sydney Drug Lawyers are recognised as the best and highly experienced leading specialists in drug charges with a special focus on getting drug charges dropped early and proving their clients’ innocence in court. They have a proven track record of achieving this for over 20 years.
Our experts have achieved, and continue to achieve, a proven track record of the highest rates of section 10’s for clients than any other law firm, leaving their clients with no criminal record to pursue their career jobs and overseas travel.
Our Specialist Drug Lawyers are capable of providing immediate, realistic and practical advice with a guarantee on maximising your chances at getting the best possible result.
Call us now on (02) 8606 2218 to book a free first consultation with an experienced Drug Defence Lawyer.
Your Options in Court
PLEADING NOT GUILTY
It is an offence if you have a prohibited drug in your possession.
To be found guilty for possession of prohibited drugs, the police must first prove each of the following elements of the offence beyond reasonable doubt:
- You had physical control or custody of the substance. This includes a situation where it was found in your pocket or found in your house because you placed it there, and
- You knew or were aware of the likelihood of the existence of it, and
- The substance found was a prohibited drug.
If any one of those elements are not proven by police. You will be found not guilty, and the charges will be dismissed in court.
Sometimes, the charges can be dropped by police at an early stage through negotiations with police. This is a special focus and specialty of ours which our team has achieved on countless occasions for their clients.
Defences to Possess Prohibited Drugs
You will be found not guilty if:
- The substance found was not actually a prohibited drug. This will be confirmed when the Drug Certificate comes back from testing.
- You did not know, or in the circumstances surrounding your case it appears you did not believe there was a real or significant chance that a drug was there.
- Police found the drug after an ‘illegal search’. This means that police did the search without having a ‘reasonable suspicion’ that you are involved in illegal activity such as drugs.
- It is reasonably possible that someone other than you, who had access to the area it was found, had control and custody of the drugs or placed it there. This can apply if the drug was found in a common shared area of a house or car which is also used by others.
- Coercion and necessity
It is important to receive some solid experienced advice as to your options from a specialist drug lawyer before considering to plead guilty. It is always possible convincing police to drop or downgrade charges, which can only generally be done before entering a plea of guilty.
In the event you decide to plead guilty it is imperative to understand what things the Judge will look into about your case before giving you a punishment, including section 10 dismissal to avoid a criminal record and to maximise your chances at getting the best possible result.
Our specialist drug lawyers will explain that the following are some of the most important information you need to know in maximising your chances at the best possible outcome even after pleading guilty.
25% discount on punishment
Pleading guilty at the first available opportunity can gain you a discount off your punishment of up to 25%. This can significantly increase your chances at getting a section 10, with no criminal record even after pleading guilty. Timing is critical which is why it is important to receive quick, reliable and experienced advice on your drug charges.
Negotiate to drop charges
Our specialist drug lawyers have successfully negotiated every type of drug charge with police for over a decade, with a very high rate of success and proven track record of droping and downgrading the charge to a less serious charge.
A lesser serious charge carries a lesser serious punishment. Charges can often be negotiated by carefully analysing the police evidence to pick out the holes in their evidence, and pointed that out in the best tactful way possible in the circumstances of your case.
Negotiate the facts
You are able to change the police facts to something more favourable to you.
The police facts are typed by police with a short story of what happened before, during and after your arrest. You may disagree to part or all of this which is why it is important to change it before it is read by the Judge. This can be done by carefully reading and knowing the police evidence against you, then pointing out all the problems in their evidence and using this to negotiate with police.
A Judge reading a set of more favourable facts to your case will generally give you a more lenient punishment. We have successfully achieved this for countless of our clients.
Remember that usually police weigh the drug with packaging. This ends up weighing more than the actual amount of the drug itself. This is why it is important to negotiate with police. The less the drug weighs, the better the outcome will be.
Good character references
A good character reference is a letter from people who have first hand seen the good that you have done during the time they have known you. It is your opportunity for the Judge to read your otherwise good character leading to a more favourable outcome to your case.
It is critical to ensure that each character reference is well drafted, and includes all the relevant main points from people including your partner, family member, employer, charity organisation you have worked for.
Our specialist drug lawyers will guide you every step along the way on how many of these to obtain, the best people to get it from, and what things to include and not include in each reference. A reference is also a great way to express your apology and show your embarrassment for your wrongdoing.
Expert reports include reports from a psychologist or psychiatrist and are one of the best ways to significantly increase your chances of a better outcome in court for the following reasons:
- If the psychologist report establishes that you were suffering a mental illness at the time of your wrongdoing, such as depression, anxiety disorder, bipolar etc, then you will be given a far less punishment than someone who was not suffering a mental illness at the time of the offence.
- It is one of the best ways to express your guilt, remorse and embarrassment to the Judge, allowing for the Judge to give you more leniency.
- It is a great way to provide, not an excuse, but an explanation for committing the offence. An explanation can allow the Judge to reduce the severity of the punishment.
- It also allows you to present your version of what really happened.
Our specialist drug lawyers only use a carefully selected hand full of the best Psychologists and psychiatrists in Australia who are recognised as leaders in their field of expertise to obtain these specialist reports from.
Our team of expert drug lawyers will ask the specialist psychologist best suited to your case specific questions to answer into the report. These questions will be specially catered to your particular case maximising your chances at getting the best possible report and best possible outcome in court.
Cannabis Cautioning Scheme
A common argument our specialist drug lawyers express in court in support of achieving a section 10 and therefore no criminal record for their clients is the cannabis cautioning scheme in context of the new High Court Decision of the Queen v Adams.
Rather than being charged and given a court attendance notice for possession of drugs, your charge may have been something that police could have given you a caution for if your caught with a minor amount of cannabis or other kind of drug.
The cannabis cautioning scheme can apply to you only in the following circumstances:
- You were caught with no more than 15 grams of cannabis
- It was for personal use only
- You admit the offence
- You were not involved with another criminal offence at the time you were caught with the drug
- You have no previous criminal record of drug offences, or offences involving violence or sexual assault
- You have not already been cautioned for this on more than two prior occasions. A section 10 for minor drug possession charge is included as a caution.
The maximum punishment for possession of prohibited drugs is a term of imprisonment of 2 years or a fine of up to $2,200, or both.
Do not be too alarmed as the courts do not normally, and rarely impose the maximum punishments. It is generally reserved for the most serious kind of offenders. This maximum punishment is there only as a guide for the judges to look at in considering how serious they should take the offence. For example, if it was a maximum of 5 years imprisonment, then this is an indication to the Judge to take it more seriously.
Types of punishment court can give
The judge has a variety of different kinds of punishments to give to you. Which one you get depends on the above factors discussed, and more.
The Judge can give any one of the following kinds of punishments for the charge of possession of prohibited drugs:
- Section 10 no criminal record
- Conviction with fine
- Conviction with good behaviour bond
- Community service order
- Suspended sentence
- Intensive Corrections Order
- Home Detention
- Full time prison
Our highly experienced specialist drug lawyers will give you immediate, realistic and practical advice on your drug charges. They have represented thousands of clients faced with drug charges for over 20 years, and have a proven track record of exceptional results which include getting charges dropped early which is a special focus of theirs, achieving section 10’s and proving their clients innocence in court.
Our team of drug lawyers recognise that a criminal record can effect your ability to gain employment and travel overseas.
What if I was holding it for a friend?
It is still an offence to be holding it for a friend.
How can they prove I had knowledge that it was in my custody or control?
You can be found guilty even if the police cannot prove you absolutely knew of the existence of the drug, but you were aware of the likelihood of the existence that there is a prohibited drug there. This is something that can be inferred from the surrounding circumstances of your particular case.
What if drugs are found hidden in a property inside a shared house?
If police accuse you had ‘exclusive possession’: If the drug was found in a common shared area of the house then you will be found not guilty if it is reasonably possible that someone other than you had control of the substance or placed it at the location it was found by police.
If police accuse you had ‘joint possession’: If the drug was found in a common shared area of the house, you will be found not guilty if the prosecution are unable to prove that each of you and co-accused intended to share the control and custody of it (and each knew or were likely to have been aware of the existence of a prohibited drug).
What if drugs found in car?
You cannot generally be found guilty for possession of prohibited drugs if you are a passenger in a car, not owned by you. The fact you were only a passenger does not constitute ‘possession’.
Further, if prohibited drugs are found in the boot of your car, while the boot was locked, but you did not have physical possession of the keys of the car, you are not considered to have exclusive control and you should be found not guilty.
Whether your found guilty or not guilty will largely depend on the surrounding circumstances of your case. It is important to speak to an experienced drug lawyer before considering to answer any police questions.
Can police agree to drop the charges?
Yes! If police are relying on exclusive or joint possession of the drugs, it can become very difficult for police to produce enough evidence to prove beyond reasonable doubt, your guilt of the charge in the absence of any other evidence such as text messages, surveillance, interview of admissions. It is important in those circumstances to be careful before giving an interview. General and safest advice would be to exercise your right to silence and refuse answering any police questions. In those circumstances, police sometimes agree to drop the charges.