What is the offence of drug possession

Drug Possession involves having a prohibited drug in one's physical custody and control. This can also include ‘de facto’ or ‘constructive’ possession in which an individual intentionally places the illegal drugs somewhere else in which they intend to maintain control over them.

Possessing drugs is an offence and is prohibited under Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW). Drug Possession is categorised as a summary offence and has a maximum sentence of 2 years and/or a fine of $2200.

It is irrelevant to the court whether you are the owner of the drugs, as long as you are in immediate physical custody of the drug in which you can practise exclusive control, you too can be charged under this offence, for example, holding them for a friend.

Most common Drug Possession cases involve sole possession, meaning an individual person being in possession of illegal drugs to the exclusion of any other person. If sole possession does not apply to you, the prosecution is also able to establish joint possession of a prohibited drug.

What is joint possession ?

This is when a person other than the defendant had possession of the drugs whilst having the consent of the defendant, and exerted some measure of control over them. Joint possession, whilst being similar, is a different concept to de-facto possession.

It must be shown that not only were you in knowledge and control of the drugs but that each defendant intended to share in the exclusive physical control of the drugs. A simple example of this is when police walk into a bar, your friend is worried and gives you the drugs and walks off, telling you to hold them.

What is a prohibited Drug?

Section 3 Drug Misuse and Trafficking Act 1985 (NSW) defines a prohibited drug as ‘ any substance, other than a prohibited plant, specified in schedule 1’. Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) outlines what is considered a ‘prohibited drug’.

This includes popular substances such as:

• Cannabis

• LSD

• MDMA

• Ice

• Cocaine

• Heroin, and others listed within this Schedule.

What are the penalties for Drug Possession?

In NSW, the penalties for drug possession can range from an on-the-spot fine to a full-time jail sentence based on the nature of the offence and the amount of drugs in question.The drug possession sentence varies with the offence specifics. Punishment severity can increase based on the drug quantity possessed, potentially leading to drug supply charges even if intended for personal use.

Section 10 Dismissal or Conditional Release Order Without Conviction

In certain cases, an individual may be able to avoid a criminal record through a section 10 dismissal or a non-conviction conditional release order. Think of a Conditonal Release Order as a fancy word for a good behaviour bond. This provision allows for the courts to discharge an offender without recording a conviction.

This penalty is more attainable when certain factors are considered, such as the defendant being a first-time offender and having only a small quantity of illegal drugs in their possession. Other influential factors might also include an individual's personal circumstances, evidence of genuine remorse and/or active efforts towards rehabilitation.

On-the-spot-fine

Additionally, there are on-the-spot fines that police may impose on individuals caught with small amounts of illegal drugs, these fines serve as an immediate penalty which result with no criminal charge.

However, if you would not like to pay the fine and dispute it you can court-elect the penalty notice in which you will have to attend court and allow your lawyers to fight the case.

Conditional Release Order with conviction

Unlike a conditional release order without conviction, a conditional release order with conviction means that the defendant will have a criminal record. This can have significant implications for future employment, travel and other areas where a criminal background check might be conducted.

As the name suggests, the release is ‘conditional’, typical conditions might include not committing any other offences for a certain period of time, participating in rehabilitation programs or counselling.

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. If the offender breaches any of the conditions set during this period, they may be brought back to court to face a more severe penalty.

Intensive corrections order

An intensive corrections order (ICO) is one of the more severe penalties that can be applied to drug possession offences. An ICO serves as an alternative to a full-time prison sentence instead of spending time behind bars, offenders serve their sentence within the community but under strict, prison-like conditions.

In more severe cases of drug possession or for repeat offenders, the court might consider an ICO. Many of the conditions include, mandatory rehabilitation, frequent drug testing and or educational programs.

While an ICO might seem lenient as it is focused on rehabilitation, it's anything but. The conditions set tend to be highly strict and if breached can lead to the offender being sent to prison.

What if it is a First Offence for Drug Possession?

First time offender, does it make a difference? Yes, it often does! 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.

With a first-time offender you're more likely to receive a non-conviction and even more likely with a specialised drug offence lawyer. The key is in the preparation. Your specialist lawyer at Faraj Defence Lawyers will ensure your matter is prepared properly, to ensure that you are put in the best possible position to receive a non-conviction penalty.

Related article: If you're enjoying a night out at a music festival make sure you read our guide on what to do if you've been caught with drugs at a festival.

What must the prosecution prove?

In order to be convicted with the offence of Drug Possession, the prosecution must prove the following three elements beyond a reasonable doubt:

Possession of a 'prohibited drug'

The prosecution needs to show that drugs were in your possession, meaning in your physical immediate custody where you can practise exclusive control OR show that the drugs (if not in your immediate physical custody) were in a place in which you intend to have exclusive control over the drug.This means the prosecution does not need to prove whether you owned the drugs or whether the drugs were on your body, the key question is whether or not the defendant had or can have exclusive control of the prohibited drugs in question.

Knowledge of the nature of the drug

Mere possession is not enough, the prosecution must also prove that the defendant knew or reasonably should have known about the nature of the substance. This means the defendant must have known that the substance in possession was in fact a ‘prohibited’ drug.

Intention to possess the drug

Prosecution must also prove that the defendant had the intention to possess the illegal drug, this ruled out ‘accidental possession’. For instance, if you unknowingly pick up someone else’s bag containing drugs, yes you are in possession of the drug however the intention to do so is not in existence.

What are my option if i'm charged with drug possession?

When charged with drug possession, it’s natural to feel distressed and uncertain about the future, however, being informed about your options can help alleviate some of this stress. Your first step should always be staying silent with police and calling a lawyer.

Pleading not guilty

If you believe the charges against you are unjustified, you may consider pleading not guilty. Here are some common reasons individuals choose to plead not guilty in drug possession cases:

Not aware of drugs

One of the elements the prosecution must prove is the accused’s knowledge of the drugs, if you genuinely weren't aware of the drugs presence, this can form a basis for a not guilty plea. For example, you might have borrowed a vehicle or a bag in which drugs were found later or someone might have placed drugs in your belongings without your knowledge.

Not aware of drugs

If police cannot prove you were in exclusive possession of the drug, meaning the accused was the sole individual with access or control over the drugs then the lack of exclusive possession can be a valid reason not to plead guilty. For example if the drugs were found in a place where multiple people have access to the area, making it uncertain who the drugs belong to.

Police conducted illegal search

If the police do not adhere to legal protocols when searching you or your property then any evidence obtained may be considered inadmissible in court. For example if police have searched your property without a valid warrant, conducting a search without reasonable grounds and/or expanding the scope of the search beyond what is outlined in the warrant.If any of these situations apply to you, it may form a basis of a solid defence and beat the case at hand with a not guilty plea.

Pleading guilty

An early guilty plea can sometimes be advantageous, indicating your remorse and acceptance of your actions to the court, possibly leading to reduced sentences or penalties. However, ensure you are certain, as this is a formal admission of the offence.

In NSW, the harshest penalty for drug possession is a 2-year jail term, usually applied in severe cases involving repeat offenders or large drug quantities. Although first-time offenders or those with small quantities might not receive the maximum penalty, having a strong legal team is vital.

Considering a guilty plea? It's essential to have a specialized drug offence lawyer. At Faraj Defence Lawyers, we provide clients with expert advice and robust defence strategies, aiming for the best outcome regardless of case complexity.

A skilled lawyer can argue for a lighter sentence, considering factors like your character and the circumstances of the offence. With proper legal help, you might qualify for alternative sentencing options, such as a section 10 dismissal or a non-conviction CRO, preserving a clean criminal record for future opportunities in employment and travel.

What are the possible defences for drug possession

Facing a drug possession charge can be overwhelming, but understanding potential defences can provide some clarity, here is a simplified breakdown of some defences you might consider:

Illegal search

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. 

Lack of evidence

There may be insufficient evidence to prove that you possessed the drugs, for example it is not enough for police to claim they saw you dispose of drugs when it is common to mistake you for another person or the possibility that someone else may have placed them there

Lack of knowledge of drugs presence

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 not 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. Several scenarios can fall under this defence, for example, shared spaces, borrowed items, gifts or packages, planting of drugs, etc.It is best to consult a legal expert in order to present your defence effectively and use the correct defence according to your own personal case.

How can Faraj Defence Lawyers Help?

At Faraj Defence Lawyers, we specialise in standing as the robust legal shield you need when facing any drug charges. Our expert team is well-versed in the complexities of drug-related law, using our great knowledge and strategic approaches to build a defence dedicated to overcoming your case.

From offering comprehensive guidance on potential defences to representing you fiercely in court, Faraj Defence Lawyers stands by your side, advocating for the best possible outcome.

If you or anyone you know is charged with drug possession, call us today on (02) 8896 6034 for your free initial consultation.