What is drug possession?

The most common drug-related charge is drug possession. “Possess prohibited drug” is a crime under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW), occurring when someone:

  • Has a prohibited drug in their possession, and
  • Knows they have a prohibited drug in their possession.

Prohibited drugs are listed under Schedule 1 of the Act.

 

Defining ‘possession’

“Possession” does not necessarily mean ownership. Legally, it refers to the custody or control of something.  Custody means physical possession, like having something in your pocket. Control means the right to do something with the drug and to exclude other people from it. If the drugs are in the accused’s bedroom, or the glovebox of their car, they have control over it.

The accused can be in possession of prohibited drugs alone or with someone else.

 

Drug possession penalties in NSW

If you have been charged with drug possession in NSW, the prosecution has a number of elements that they need to prove in order for a conviction to succeed. Depending upon the nature of the proceedings, and your individual circumstances, the penalties can vary.

 

Maximum sentence for drug possession

The maximum sentence for drug possession is two years imprisonment. However, few people convicted of drug possession receive a prison sentence. More common penalties include a Conditional Release Order or Community Correction Order.

 

What if it’s a first offence for drug possession in NSW?

Jail time is a possibility, but ordinarily, this would not be imposed for a first offence involving a small quantity. It may be possible to avoid conviction if the matter is dealt with under section 10 of the Crimes (Sentencing Procedure) Act.

 

Frequently Asked Questions

Where will the matter be heard?

Drug possession is a summary offence. This means it will be dealt with in the Local Court.

Should I complete the Written Notice of Pleading?

In some matters, the police will provide a Written Notice of Pleading together with the Court Attendance Notice (CAN). Completing and submitting this form allows you to plead in writing instead of attending court.

You should seek legal advice from a drug possession lawyer before completing a Written Notice of Pleading. Generally, we advise against it. By completing the written notice you will most likely receive a criminal conviction. Your matter will be heard in your absence and you will have lost the opportunity to present your case and advocate for a penalty which does not carry a criminal conviction. It also suggests to the court that you do not take the matter seriously.

How can the charges be defended?

Sometimes drug possession charges can be defended on the basis that:

  • You did not have possession of the prohibited drug, or
  • You did not have knowledge that the drug was in your possession.

Where the prohibited drug is found in an accused’s shared house or car, issues surrounding “possession” may arise. If, for example, drugs are found in the bathroom cabinet in a house to which three people all had shared access, the prosecution may not be able to prove that the accused specifically had possession of the drugs.

If you are pulled over for a random breath test while driving a friend’s car and the police officer finds drugs in the boot, then the prosecution may not be able to prove that you had the requisite knowledge that the drugs were located there.

As another example, if a friend places her purse in your handbag, and the purse is found to contain two ecstasy tablets, you cannot be found guilty unless it can be proven that you had knowledge of the drugs.

What are the consequences of a drug possession charge?

If you are found guilty or plead guilty to a drug possession charge, a conviction may be recorded. This means that you will have a conviction on your criminal record, which can affect your future employment prospects or ability to travel to certain countries.

Can I also be charged with drug supply?

If you have a traffickable quantity of drugs in your possession, you could be charged with drug supply. If you are found in possession of more than a traffickable quantity of a prohibited drug, you are “deemed” to have the drugs in your possession for the purpose of supply unless you can prove that was not your intention. A traffickable quantity is considered more than would be appropriate for individual use, however in some cases this is still a relatively small amount. The traffickable quantities of some common drugs are set out below:

Prohibited Drug Cannabis leaf Cocaine Heroin MDMA/

Ecstasy

LSD
Traffickable Quantity 300g 3g 3g 0.75g 0.003 grams (15 tabs)

What should I do if I have been charged with drug possession?

If you have been charged with possessing an illegal drug there are a number of ways our drug possession lawyers in Sydney can assist you in the court process. You may have a defence available and wish to plead not guilty, in which case we can represent you at hearing. Alternatively, you may wish to plead guilty, in which case one of our defence lawyers can make submissions on your behalf on sentence.

We will be able to advise you on the best course of action in your specific circumstances, the likely costs involved, and the expected time frame until completion.

Drug possession lawyers ready to help

We are experienced in successfully defending drug possession charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.