Drug Possession in NSW 

Drug Possession Charges in NSW

It is a crime to possess prohibited drugs in NSW. A prohibited drug includes Cannabis, MDMA or ecstasy, cocaine, Amphetamine, Methylamphetamine, and other drugs listed in schedule 1 of the Drug Misuse and Trafficking Act. 

Possession is where a prohibited drug is found in your physical custody or control, and you knew that it was in your physical custody or control.

Drug Possession Penalties in NSW

Australian Penalties for Drug Possession or possession of illegal drug charges can be severe.

The consequences of drug possession can result in a criminal conviction or section 10 without a criminal conviction, depending on how well the case is prepared and presented in court.

So, what’re is the maximum sentence for drug possession? Drug possession charges in NSW carries a maximum penalty of up to 2-years imprisonment and/or $2,200 fine, with a criminal conviction.

Experienced drug lawyers are able to work out the best way to prepare and powerfully present drug possession cases to avoid a conviction for drug possession even after pleading guilty (section 10).

This applies whether it’s your second or first offence for drug possession.


Can you get an on-the-spot fine for drug possession in NSW?

As of the end of January 2019, police officers in NSW have the discretion to now issue an on-the-spot fine of $400 (penalty notice) to people caught possessing drugs under schedule 4 of the Criminal Procedure Regulation 2017 (NSW).

An on-the-spot fine cannot be issued by police if the drug is cannabis leaf. However, if someone is caught with cannabis, a police officer has the discretion to give a cannabis caution under the cannabis cautioning scheme.

A police officer can issue an on-the-spot fine for drug possession if:

  • You have possession of a prohibited drug; and
  • The prohibited drug is MDMA/Ecstasy in capsule form, weighing no more than 0.25g; or
  • The prohibited drug is MDMA/Ecstasy in any other form, weighing under 0.75g; or
  • Any other prohibited drug, weighing no more than the ‘small quantity’ for that drug.

As issuing an on-the-spot fine is discretionary, it is not mandatory for police to issue them.

Instead of issuing a fine, a police officer can charge you with drug possession by issuing you with a ‘Court Attendance Notice’ requiring you to attend court to answer the charge before a Magistrate in the Local Court where you may plead guilty or not guilty.

The benefit of being issued with an on-the-spot fine is that, by paying the fine you will not receive a criminal record.

Paying the fine puts an end to the matter, however, if you refuse to pay the fine and dispute it, you can court-elect the penalty notice. If you do this, you will get a court date to attend the Local Court.

If you court-elect or if you get charged with a court attendance notice for drug possession, you will be required to attend court and either plead guilty or not guilty. Either way, if you are found guilty, the Magistrate has the option of imposing a criminal record with heavier penalties.

However, you will not receive a criminal record and no fine if you are able to convince the Magistrate in court to give you a section 10 dismissal or conditional release order without conviction (even after pleading guilty to a drug possession charge in court).


Section 10 Drug Possession Non-Conviction

Under NSW drug possession laws, a Magistrate can give you a section 10 non-conviction sentence even after you plead guilty to possessing drugs.

This means, getting a section 10 sentence will result in no criminal conviction.

Those facing a second, or first-time drug possession charge do not automatically get a section 10 non-conviction in court.

To avoid being convicted of drug possession in court, solid preparation and knowledge of the law is required.

Some main factors the Magistrate or Judge will consider when deciding whether or not to give a section 10 sentence for drug possession charges include the following:

  • Your good character.
  • Your age and health.
  • Your mental illness if any, and if so, whether it contributed to you committing the offence.
  • The absence of having a prior criminal record.
  • Trivial nature of the offence.
  • Any extenuating circumstances of the offence.
  • Anything else the court considers proper, including the impact a conviction will have on your job, and the flow on effect of that on anyone else who relies on your income.

Average Jail Time & Sentence for Drug Possession

The Judicial Commission of New South Wales have recorded a total of just over 6,000 cases over period September 2018 to March 2019, each receiving a variety of penalties from section 10 non-conviction to imprisonment. 

For period between September 2018 to March 2019 the below table shows the various types of penalties imposed by the Local Court across 6,151 people guilty of drug possession: 

Average gaol time & sentences for drug possession charges in NSW 

Penalty Type Percent Cases
S10(1) Dismissal non-conviction 5.4% 333
S10(1)(c) Discharge 0 0
Conditional release Order non-conviction 26.6% 1634
S10A with conviction 4.2% 256
Fine with conviction 51.1% 3143
Conditional Release Order with Conviction 4.7% 291
Community Correction Order 6.1% 373
Intensive Correction Order 0.7% 41
Imprisonment 1.3% 80

Defences to Drug Possession NSW

You will be found ‘not guilty’ to possessing prohibited drugs if:

  • The drugs were found as a result of an illegality by police, including illegal search or illegal arrest.
  • You didn’t know the drugs were there, nor were you aware of the likelihood of its existence there.
  • Where the drugs were discovered by police in a common area such as home or car where people other than you had access to it. This defence will succeed if there is a reasonable possibility that someone other than you had custody or control of the drugs to the exclusion of all others not acting in concert.
  • The prosecution cannot prove that the alleged substance is a prohibited drug under schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW).
  • You had possession of a minute trace or amount of a prohibited drug.
  • You had possession of the drug due to Duress or Necessity.

Types of Penalties a Court Can Impose for Drug Charges in NSW

A Judge or Magistrate may impose any one of the below kinds of sentencing penalties for a drug offence:

  1. Section 10 Dismissal (non-conviction)
  2. Conditional Release Order with or without conviction
  3. Fine with conviction
  4. Community Correction Order with conviction
  5. Intensive Correction Order with conviction
  6. Full-Time Imprisonment with conviction

Your Options in Court

PLEADING NOT GUILTY

After pleading not guilty in court, your drug case will eventually get adjourned for a defended hearing in the Local Court where the Magistrate or Judge will hear all the evidence.

After the Court hears all evidence, the Magistrate or Judge will give a verdict of either ‘guilty’ or ‘not guilty’ to the charge.

If you’re found ‘not guilty’, the charge will be dismissed.

If you’re found ‘guilty’, the Magistrate or Judge will sentence you.

You can only be found ‘guilty’ of your drug charge in court if the prosecution can prove each and every element of the drug charge you face, beyond reasonable doubt, as follows:

What the Police Must Prove for a Drug Possession Charge:

  1. The substance found is a ‘prohibited drug’ or plant under the law; and
  2. You had the custody or control of the prohibited drug, with the intention to be able to exclude others not acting in concert; and
  3. You either knew or at least believed that there was a real chance that the prohibited drug was there. The prosecution is not required to prove that you knew it was the particular drug found, only that you knew or were aware of the likelihood of the existence of a drug.

PLEADING GUILTY

If after receiving advice, you decide to ‘plead guilty’ to a drug charge, you should read the below guide on how you can best prepare your case- to maximise your chances to avoid a criminal conviction (s10) and prison.

25% discount on punishment

Your sentence will be reduced by 25% if a plea of guilty to your drug charge is entered at the earliest possible opportunity in the court proceedings.

This will increase your chances of getting a s10 to avoid a drug conviction.

The later a plea of guilty is entered, the smaller the discount gets. Therefore, it’s critical to get early legal advice and guidance to avoid missing out on the full discount.

Good character references

Gathering compelling character reference letters for court in drug possession, supply or import cases can persuade a Judge or Magistrate to impose a lighter sentence.

This can increase your chances to remain conviction-free (s10), and in more serious cases, to avoid prison.

Your referees should be carefully chosen, who may outline expressions of your remorse, insight, and the impact a drug conviction will have on your job and family dependants.

Referees may include, family, partner, friend, employer, colleague, and charity or religious organisation.

Letter of Apology

A compelling apology letter in a drug case should be drafted, signed and dated by the person being sentenced.

It may outline the offender’s expressions of insight, remorse, and personal circumstances for the court to read. This can convince the court to impose a lighter sentence.

Negotiate to drop charges

If there are enough holes in the police evidence or you have a strong defence, you may be able to convince the police to withdraw the drug charge early through effective negotiations.

Your lawyer may do this by drafting and sending a document referred to as ‘legal representations’ to the prosecution, outlining the holes in their evidence. This should be done before entering a plea of guilty.

Depending on the case, it may or may not be appropriate to do this.

Negotiate to change the police facts

You may also be able to negotiate and change the ‘police fact sheet’ to more accurately reflect the drug offence.

The police facts sheet is a document summarising the main details of your drug offence for the court to read before a sentence is imposed.

Changing this document can then reflect you in a better light when read by the Judge or Magistrate on your sentence- resulting in a better court outcome.

The police facts sheet is a document summarising the main details of your drug offence for the court to read before a sentence is imposed.

Psychologist Reports

It is recommended to obtain a psychologist or psychiatrist expert report to produce to the Judge or Magistrate on your sentence date if you believe you may be suffering a mental condition.

This can significantly improve your sentence result if it’s done properly from a well-respected and experienced expert psychologist or psychiatrist.

A compelling psychologist report may comment on your diagnosis of mental illness, whether there is a connection between your condition and your drug offence, any remorse and insight you have, a treatment plan and progress.

Expert Reports

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.

Maximum penalty

The maximum penalty 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 penalties 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:

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.

Why Choose Us?

With over 20-years’ experience, we are a team of Australia’s leading criminal defence lawyers who specialise in drug law. We have achieved success across all complex drug cases with outstanding results. This includes: 

  • Section 10 non-conviction outcomes. 
  • Securing not guilty verdicts for serious drug charges.
  • Negotiating with police to get serious drug charges dropped early.
  • Avoiding full-time imprisonment for serious drug offences. 

FAQ

How to avoid a drug conviction after pleading guilty to drug possession?

In addition to the factors outlined earlier on this page, when determining whether to impose a non-conviction penalty after pleading guilty, a Magistrate or Judge will consider the following factors:

  • Your good character
  • Your age and health
  • Whether you were or are suffering a mental illness, and if so, whether the mental illness contributed to you committing the offence.
  • Having no or limited previous convictions or offences on your record
  • Trivial nature of the offence
  • Any extenuating circumstances of the offence
  • Anything else the court considers proper to take into account on your sentence, including the impact that a conviction will have on your job, and the flow on effect of that on anyone else who relies on your income.

For a guide on what you should know and how to best prepare for a sentence in order to get the best chances at getting a section 10 dismissal or ‘non-conviction Conditional Release Order’ for drug possession offences, see our guide on ‘How to Avoid a Conviction After Pleading Guilty to a Drug Offence’.

When can a drug possession charge turn into a ‘deemed supply’ charge?

If you are found in possession of a prohibited drug weighing an amount that falls in at least the ‘traffickable quantity’ for that drug, the law assumes that you had it for the purposes of supplying under section 29 Drug Misuse and Trafficking Act 1985 (NSW).

This means that you can be charged and convicted for ‘deemed supply’.

A common defence to a ‘deemed supply’ charge includes, proving on the balance of probabilities that you had possession of the drug for personal use or for any other purpose other than to supply.

What is the Cannabis Cautioning Scheme for Drug Possession?

In NSW, if you are caught with cannabis in your possession, a police officer has the discretion (option) to not charge you for drug possession, but instead give you a cannabis caution (warning) if:

  • You had possession of no more than 15 grams of cannabis; and
  • You had the cannabis for personal use; and
  • You admitted to having possession of it; and
  • At the time of being caught with cannabis, you were not involved in any other criminal offence; and
  • You have no previous record of drugs, violence or sexual assault offences; and
  • You have not been cautioned for possessing drugs on more than 2 previous occasions.

If you are given a cannabis caution by a police officer, you will not be charged for drug possession, which means you will not be required to attend court to face a conviction.

What does physical custody or control mean?

Having physical custody means to have it in your immediate physical custody where you exercise exclusive control over it. For example, where you have the drugs on you, including your hands or pocket. 

Having control includes having exclusive physical control over it even if the drugs were found somewhere other than on you. For example, where the drugs were found in your home, car or other location.

What if I was holding drugs for a friend?

Holding drugs for a friend or anyone is a crime in NSW. It amounts to drug possession if you had knowledge it was on you.

How can the prosecution prove that you had knowledge of the drug?

To prove a drug possession offence, the prosecution must prove that you knew of the existence of the drugs from where it was found by police or you were aware of the likelihood of its existence there. This can be inferred by the court from looking into the circumstances from where the drugs were found.

For example, it may be inferred that you had knowledge of the drugs if the drugs were found in a secret compartment of your car which only you had access to because no one else used the car but you.

Having physical custody of a prohibited drug on you can allow a court to infer that you had knowledge of it, unless you can prove otherwise.

However, a court cannot necessarily infer that you had possession of drugs if the drugs were found in a house, car or location that others also have access to or frequent, unless the court can exclude the reasonable possibility that people other than you had or intended to exercise control over it to the exclusion of others not acting in concert.

Drugs found in a shared house or area

If prohibited drugs are found in a shared area of a home or other building, you cannot be guilty of drug possession if there is a reasonable possibility that someone other than you who also accesses the same area had placed the drug there or has custody of it with the intention to exclude others. You can only be guilty if the prosecution can eliminate that reasonable possibility beyond reasonable doubt, which is usually very difficult to do.

If prohibited drugs are found in a shared area of a house or building where you and other people frequently attend or have access to, you can be charged with ‘joint possession of drugs’.

However, you cannot be found guilty of ‘joint possession of drugs’ if the prosecution fail to prove that you and those others who also had access or frequented that area intended to share the control of the drugs.

Drugs found in a car

Drugs found in someone else’s car where you are a passenger in
If prohibited drugs are found in a car or other moving vehicle not owned by you where you are a passenger, you cannot be guilty of drug possession merely because of that fact.

Drugs found in your car
If prohibited drugs are discovered by police in the boot of your car, in circumstances the boot is locked and you don’t have the keys to the car, you cannot be found guilty of possessing drugs. This is because you will not be considered to have ‘exclusive control’ of the drugs. 

If prohibited drugs are found in a car you use, being the same car others also have access to and use on occasions too, the police can charge you and those others with ‘joint possession of drugs’.

However, you cannot be found guilty of ‘joint possession of drugs’ if the prosecution is unable to prove that you, and those others, intended to share the control of the drugs.

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.

Good Character Reference Guide for Court

How to Write an Apology Letter for Court

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