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Possess Prohibited Drug

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THE OFFENCE

Possession of a prohibited drug is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for drug possession is 2 years imprisonment. As drug possession is a “summary offence”, your matter will start and finish before a magistrate in the Local Court.

WHAT THE PROSECUTION MUST PROVE

To prove possession, the prosecution must show beyond reasonable doubt that:

  • An illegal drug was in a person’s ‘custody’ or ‘control’, and
  • The person knew that they had custody or control of a prohibited drug

A complete list of prohibited drugs is provided in Schedule 1 of the Drug Misuse and Trafficking Act 1985.

DEFENCES

You may have a defence if:

  • The substance was not a prohibited drug, and/or
  • The substance was not in your possession, and/or
  • You did not have knowledge that the substance was in your possession

WILL I GET A CRIMINAL RECORD?

Upon conviction, you are liable to imprisonment for up to 2 years. However, the maximum penalty is for the most serious offender and usually reserved for someone who also has a past criminal history. For the full range of penalties that can be imposed for Possess Prohibited Drug, see our Sentencing Options page.

CAN I GET A ‘SECTION 10?’

Section 10 of the Crimes (Sentencing Procedure) Act 1999 allows a Court to find a person guilty of Possess Prohibited Drug, however not record a conviction.

A section 10 is not always appropriate or attainable even if an offender has no prior criminal history. This is because a magistrate is required to take into account the following factors when considering sentencing an offender under section 10:

  • The person’s character, antecedents, age, health and mental condition;
  • The trivial nature of the offence;
  • The extenuating circumstances in which the offence was committed; and
  • Any other matter that the court thinks proper to consider.

However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee an offender receives a section 10.

For FREE initial advice about the prospects of your matter, contact one of our criminal law specialists.

SHOULD I  COMPLETE THE WRITTEN NOTICE OF PLEADING AND NOT ATTEND COURT?

The police will sometimes give you with a yellow “Written Notice of Pleading” form. In certain circumstances, you can indicate on this form that you wish to plead guilty and then send the form to the court.

We do not recommend this. It is always advisable to attend court in person, preferably represented by a lawyer and particularly if you are hoping to avoid a criminal conviction. Remember, this offence carries a maximum penalty of 2 years imprisonment. By attending court, you are showing the magistrate that you take the matter seriously and accept responsibility.

OTHER QUESTIONS YOU MAY HAVE IN RELATION TO POSSESS PROHIBITED DRUG:

Are Police allowed to use sniffer dogs to detect drugs?

Many people charged with drug possession were detected by a police sniffer dog. If a police officer suspects “on reasonable grounds” that you have in your possession a prohibited plant or drug, they may stop, search, and detail you. Importantly:

  • Police do not require a warrant to use drug sniffer dogs if the person searched is at a sporting event, concert, dance party or parade; or a public place where entertainment is being held.
  • Warrants are also not required in bars, pubs and other premises being used for the consumption of alcohol sold at the premises.

Do I have a right to remain silent?

There is generally no requirement that you answer questions. You will not be punished more harshly for failing to answer questions. Making an admissions can later be used against you. For example, if you admitted that you knew the substance was a prohibited drug, or if you admitted an intention to supply the drugs to your friends. However, if you have co-operated with police that may be in your favour during court proceedings. If in doubt, you should seek legal advice.

The drugs were weighed in the bag – is this a problem?

Police may weigh the drugs in the bags they were seized in. They then refer to the total weight, including packaging, in the charge and Police Facts sheet. You should be sentenced for the weight of the prohibited drug only, not the packaging.  The drugs can be analysed and weighed after you have been charged and the actual weight determined. However, this does not automatically happen and an analysis is usually only conducted if you plead not-guilty, or the police agree to obtain one. Your lawyer can advise you in more detail in this regard.

Is there a chance I will be charged with supply?

Supplying a prohibited drug is a much more serious charge than possession, carrying maximum penalties of between 15 years and life imprisonment.

Generally, a person will be charged with possession when the quantity of the drug is below the “traffickable quantity” and where there is no evidence of supply (for example large amounts of money, satchel bags etc.). If the amount you were caught in possession of was over the traffickable quanitity, or you had incriminating text messages or satchel bags in your possession, you may be charged with supply at a later stage.

The traffickable quantity for each drug differs, but as an example, methylamphetamine has a traffickable quantity of 3 grams and ecstasy 0.75grams. When the quantity of drugs found in an individual’s possession is above the traffickable quantity, the prosecution can rely on the weight to prove the drugs were for supply. This is called deemed supply. See our Supply Prohibited Drug page for more information.

CASE STUDIES

Streeton Lawyers are drug offence experts. Click below to read recent case studies for Possess Prohibited Drug:

CASE STUDY 1

CASE STUDY 2

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