Drug Possession in New South Wales

In New South Wales, drug possession is an offence which commonly comes before the courts, with around 36,902 recorded incidents in 2022, as reported by the NSW Bureau of Crime and Statistics.

On average, over half of all possession proceedings will involve cannabis.

Possessing a prohibited drug is criminalised under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW).

Whether a substance is classified as a ‘prohibited drug’ will depend upon whether it is listed in Schedule 1 of this Act.

Substances listed include cocaine, cannabis, ketamine, ecstasy or MDMA (referred to as ‘3,4-Methylenedioxymethamphetamine’), heroin, amphetamine, and LSD (referred to as ‘lysergic acid’).

The prosecution is required to prove that:

1. The substance discovered is a ‘prohibited drug’,

2. The prohibited drug was in the person’s ‘exclusive physical control or custody’, and

3. The person had an intention to ‘control’ or had an awareness of the existence and nature of the prohibited drug.

In determining whether someone had exclusive possession of a substance, it will be considered whether others had free access or use of the space in which the drugs were located. However, it will be relatively easy to prove this if a prohibited drug is located in someone’s pockets, for example.

A maximum penalty of a $2,200 fine and/or 2 years imprisonment is applicable.

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Statistics reveal that the most common outcome for those who are sentenced in relation to an offence of drug possession is being convicted and fined.

However, these statistics vary dependant on the drug type, with convictions more likely where the offence involves amphetamines, cannabis, heroin and other opiates or sedatives.

Where the offence involves cocaine, ecstasy or hallucinogens, statistics show that a good behaviour bond, without conviction, is more likely.

Despite this, case law from the High Court has held that prohibited drugs should not be treated differently on the basis that some may be viewed more ‘harmful’ than others.

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It is important to note that instead of charging someone found to be in possession of drugs, police officers choose to issue an on-the-spot fine of $400.

This is a ‘penalty infringement notice’ and paying the fine will not result in a conviction, or anything on a criminal record.

However, police only have the discretion to issue this if the amount of the drug involved is the ‘small quantity’ or under for the relevant drug.

For example, the ‘small quantity’ is 1 gram for amphetamine, cocaine, heroin, and codeine. It is 2.5 grams for ketamine, and 0.0008 grams for LSD.

If the drug is ecstasy or ‘MDMA’, the threshold amount is instead the small quantity (0.25 grams) if it is in capsule form, or less than a traffickable quantity (0.75 grams) in any other form.

This is a purely discretionary measure that may be taken by police, and they may nonetheless choose to charge someone, even where the amount involved is the small quantity or under.

This option is not applicable for possession of cannabis. Instead, police officers may seek to formally caution the offender under the ‘cannabis cautioning scheme’, where the amount is under 15 grams.

A person will be ineligible for a caution if they do not admit guilt to possession, have had prior convictions of drug, violence, or sex offences, were also involved in other criminal offences at the time, or have received a caution twice (being the maximum amount).

This scheme involves police officers issuing a caution notice, which provides the contact number for the ‘Alcohol and Drug Information Service’.

This service provides legal and health information related to the use of cannabis, and options for treatment and support.

It is optional to contact this service for a first cannabis caution, however if you receive a second (and final) caution, you are required to contact the service for a mandatory education session.

This is prescribed to occur within 14 days of receiving the cannabis caution, however, there is no current mechanism which provides that police officers follow-up non-compliant offenders.

Despite this, it may be brought to the court’s attention if you are charged with any further offences.

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If you need further information or legal assistance, contact our team of defence lawyers for a free consultation.

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