Being caught with drugs, especially for the first time, can be a deeply distressing and frightening experience. Many individuals dealing with this situation often find themselves overwhelmed with thoughts of potential jail time, damage to their reputation, and how this could influence their future and employment.

However, understanding your rights and potential outcomes is crucial in making sure you navigate your situation with knowledge and confidence. Securing the right legal representation is a crucial step in navigating these challenges effectively. In this guide, we’ll explore the different ways you can avoid conviction if charged with drug possession for the first time.

WHAT IS DRUG POSSESSION?

Drug possession in NSW, as defined by the Drug Misuse and Trafficking Act 1985 (NSW), involves having a prohibited drug under one's immediate physical custody in which a person can have practise exclusive control, irrespective of the intent for personal use or distribution.

The act classifies Drug Possession as a punishable offence with a maximum sentence of 2 years or a fine of up to $2200. While the penalties may seem harsh, courts typically view first-time offences differently from repeated offences. A clean record prior to the charge can be viewed more leniently, especially if there are no other aggravating factors involved.

HOW TO AVOID JAIL TIME AS A FIRST-TIME OFFENDER FOR DRUG POSSESSION

Does being a first-timer make a difference? in fact it does! Section 21A of the Crimes (Sentencing Procedure) Act (1999), (3e) lists the mitigating factors courts must take into consideration whilst sentencing, this includes ‘the offender does not have any record (or significant record) of previous convictions,’.

Here are 8 different methods that will help first time drug possession offenders avoid conviction:

1. Pursuing drug diversion/drug court programs
2. Actively engaging in rehabilitation
3. Securing a section 10 dismissal
4. Securing a conditional release order
5. Submitting an apology letter to the court
6. Presenting character references
7. Entering a timely guilty plea/Early guilty plea
8. Seek professional legal help

PURSUING DRUG DIVERSION/DRUG COURT PROGRAMS

In NSW, drug diversion programs serve as an alternative to traditional punitive measures often associated with drug offences, instead of imprisonment individuals are referred to specialised programs designed to address the root causes of drug dependence.

A common program run by courts is the MERIT program, available to people charged in the Local Court which aids offenders to break the cycle of problematic drug and/or alcohol use.

ACTIVELY ENGAGING IN REHABILITATION

Taking proactive steps towards rehabilitation, such as enrolling in counselling sessions or joining support groups, speaks volumes about an individual's commitment to change. Courts in NSW often view this proactive stance favourable.

By addressing the issues leading to the offence head-on, individuals not only benefit personally but also demonstrate to the court their dedication to becoming responsible community members.

SECURING A SECTION 10 DISMISSAL

Section 10 of the Crimes (Sentencing Procedure) Act (1999) is a powerful tool for first-time offenders. It allows the court to find an individual guilty but dismiss the charges without recording a conviction. This means you can leave the courtroom criminal record free and avoid negatively impacting future employment or travel opportunities.

Such a dismissal is more likely given for minor offences, where the individual shows genuine remorse, and where a criminal record would be disproportionately detrimental given the circumstances of the offence.

SECURING CONDITIONAL RELEASE ORDERS

A Conditional Release Order is an alternative to full-time imprisonment. While under a CRO, individuals must adhere to specific conditions set by the court, which might include regular check-ins with authorities, mandatory drug tests, or participation in rehabilitation programs.

These orders emphasise reform and allow for individuals to serve their sentence within the community. This penalty is more attainable when certain factors are considered, such as the defendant being a first-time offender, there is also the option available to court to sentence a person with a non-conviction CRO, meaning the person completes their sentence whilst avoiding a criminal record.

SUBMITTING AN APOLOGY LETTER TO COURT

Expressing genuine remorse can be a significant factor during sentencing. An apology letter allows the offender to acknowledge their wrongdoing and convey their commitment to change. A well-written, sincere apology can show the Judge the individual's understanding of the consequences of their actions, potentially influencing a more lenient sentence.

PRESENTING CHARACTER REFERENCES

Character references provide the court with a broader understanding of the individual outside of the offence in question. These letters are often written by employers, family members, or community leaders, and can paint a picture of the individual's character, work ethic, and community involvement.

A strong character reference can sway the court's perception, especially if they attest to the offender's remorse and likelihood to not re-offend.

ENTERING A TIMELY GUILTY PLEA/EARLY GUILTY PLEA

Admitting guilt at an early stage can result in a reduced sentence. An early guilty plea not only eases the court's burden by avoiding a full-blown trial but also indicates the offender's acknowledgment of wrongdoing and willingness to face the consequences.

Frequently, an early guilty plea can lead to a reduced sentence and/or a ‘discount’ on some particular penalties. This demonstration of responsibility and remorse can lead to more lenient sentencing.

SEEK PROFESSIONAL LEGAL HELP

Navigating the legal landscape, especially when faced with drug offences, often requires expert guidance. Retaining a specialised criminal defence lawyer, such as the team at Faraj Defence Lawyers, becomes paramount.

Ensuring your rights are upheld and that you’re being presented in the best possible light is our mission, through our in-depth knowledge of the law, coupled with our strategic approach to defence we maximise the likelihood of a positive outcome. In moments when the stakes are high, the importance of professional legal representation becomes essential.

Book your free consultation by calling us at (02) 8896 6034 or emailing us at af@farajdefencelawyers.com.au.

POTENTIAL DEFENCES TO FIRST-TIME DRUG POSSESSION CHARGES

The key to a favourable outcome often lies in understanding and presenting effective defences tailored to the specific circumstances of a case. These defences allow you to avoid any penalties that may be related to drug possession charges, and as such avoid any conviction.

Here are 6 main defences for those charged with drug possession:

1. Proving lack of knowledge or intent
2. Challenging the legitimacy of the search
3. Questioning the authenticity of the substance
4. Defending minute trace possession
5. Disputing ownership in shared spaces
6. Using necessity/duress defence

PROVING LACK OF KNOWLEDGE OR INTENT

If you did not know the drugs were in your possession, this could be a strong defence. The key is to prove the absence of knowledge and intent, if you had no reason to suspect drugs in your possession and no way of knowing they were there, this defence could be used to challenge the prosecution's case.

For example, scenarios such as shared spaces, borrowed items, unexpected substances in gifts and/or even instances where drugs may have been planted maliciously by someone with a motive can make gaps in prosecution's case and can make the lack of knowledge or intent element difficult to establish.

CHALLENGING THE LEGITIMACY OF THE SEARCH

Law enforcement must adhere to strict protocols when conducting searches. If police did not follow correct legal procedures when searching you, your belongings or property then any evidence they found may be dismissed in court. In simple terms, if the police didn't have the right to search you but did so anyway, the evidence collected might not be used against you.

QUESTIONING THE AUTHENTICITY OF THE SUBSTANCE

Not all substances that appear illicit are illegal drugs. There have been cases where substances believed to be illicit drugs turned out to be negative upon further testing. Laboratory verification is crucial in these scenarios, and without it, charges based on mistaken results of the substance can be challenged. For example false positives, whilst rare, can happen during on-the-spot drug testing kits can lead to wrongful accusations.

DEFENDING MINUTE TRACE POSSESSION

Finding trace amounts of a drug might not always equate to possession for use. In some cases, residual amounts, especially if they're not usable or consumable, can serve as a basis for defence. The argument here focuses on the non-consumable nature of the substance found.

DISPUTING OWNERSHIP IN SHARED SPACES

If prohibited drugs are found in a shared space, establishing unequivocal possession by one individual can make the charge of drug possession difficult. Prohibited drugs which are found in a shared space, such as a ‘communal lounge room’, found in the case of R v Filippetti (1978) where everyone living there had proximity and access to it meaning that anyone living in the house could have been the owner of drugs.

It was found that it is necessary for prosecution to prove beyond a reasonable doubt that the illicit drugs must have been in a persons 'exclusive physical control’, this can't be proven if multiple people can have access to the same drugs.

USING NECESSITY/DURESS DEFENCE

In rare situations, individuals might possess drugs due to extreme pressure or threats to their safety. While challenging to prove, if one can demonstrate possession under significant duress or out of immediate necessity, it can serve as a valid defence to the offence of Drug possession.

CAN I BE CHARGED WITH ANYTHING ELSE?

While drug possession is a common charge that many individuals face in NSW, it's crucial to understand that the spectrum of drug-related offences is broader. In addition to simple possession, there are more severe charges that can be applied based on the circumstances surrounding the case. Understanding the various areas of drug offences can help in preparing an effective defence and receiving the best possible outcome.

DEEMED SUPPLY

For example ‘Deemed Supply’ is a possible charge that can be faced by an individual that is found with a quantity of drugs that exceeds the legally defined threshold for personal use. This means that the law assumes an intention to supply even if there is no additional evidence to support the supplying of drugs. This is an offence under Section 29 of the Drug Misuse and Trafficking Act 1985 (NSW).

DRUG SUPPLY

Section 25 of the Misuse and Trafficking Act 1985 (NSW) makes Drug Supply an punishable offence in NSW. Drug supply is a more serious offence than simple possession. While possession involves having a prohibited substance for personal use, drug supply involves distributing, selling, or administering it to others. The distinction between the two can often rely on the quantity of the drug in question, with larger amounts potentially implying an intent to supply.

A ONE-TIME MISTAKE DOES NOT DEFINE YOU: ACT NOW

Facing a drug possession drug can be stressful, especially for a first time offender. It is essential to note that one mistake does not define your entire life or future, being proactive and well informed is key to significantly impacting the outcome of one's case.

Provisions in place such as non-convictions penalties can help first-timers in shaping their lives and receiving a second chance. By seeking knowledgeable legal advice, you are ensuring you are not only guided in the correct direction but that you obtain a robust defence team, ready to advocate on your side.

At Faraj Defence Lawyers, we make the difference from lasting repercussions and a fresh start. Don't let a small mistake cloud your future. Act promptly, seek expert legal advice and contact us today at (02) 8896 6034 or email us at af@farajdefencelawyers.com.au to book your free initial consultation.