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.
“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.