Possession of a prohibited drug is an offence under Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW).
Common examples of prohibited drugs include Cannabis, Cocaine and Heroin. In order to make out a charge of possession, the prosecution must normally prove two points:
That the accused had a degree of physical control over the drugs; and
That the accused had an intention to control the drugs, or knew of their existence.
Types of Drugs
The types of drugs that are prohibited are set out in Schedule 1 of the Act. Some of the better-known types include:
Lysergic Acid (LSD)
Amphetamines (including Speed and Ice)
Possession is a summary offence, and hence the maximum penalty is a fine of $2,200, or imprisonment for a term of 2 years. However, it is very rare to receive a term of imprisonment for this offence. The most common penalty is a fine, but a court may also choose to impose any of the following alternatives:
Intensive correction order
Community service order
Good behaviour bond
Section 10 dismissal
If you have been charged with possession of a prohibited drug, you may be able to argue that you didn’t have control of the drugs, or were unaware of their existence. For example, where prohibited drugs are found on premises shared by several persons, you may have success in claiming that the drugs did not belong to you, and you did not know they were there. Other defences include duress or necessity.
There are also several exceptional circumstances outlined within the offence under which a person will not be found guilty of the offence, such as where the person has a lawful prescription for the prohibited drugs.
Going to Court
This offence is likely to be heard in the Local Court. However, this is dependent on the quantity of the drug found in possession. In NSW, the quantity has great bearing on the charge; the larger the quantity of drug, the more serious the penalty is likely to be.
If the quantity of substance is deemed to be a traffickable quantity, the offender may be charged with supply of prohibited drugs under Section 29. This is often referred to as “deemed supply”, you are deemed to be in possession of the drugs for the purpose of supplying them to others. Supply of drugs involves more severe penalties than possession. See the Supply of Drugs page for more information.
Other summary offences related to possession include:
Possession of Equipment for Administration of Prohibited Drugs (s11)
Possession of Tablet Press (s11B)
Possession of Instructions for Manufacture or Production of Prohibited Drugs (s11C)
These offences also carry a maximum penalty of 2 years imprisonment, or a fine of $2,200. Other indictable offences related to possession include:
Possession of Precursors and Certain Apparatus for Manufacture or Production of Prohibited Drugs (s24A(1))
Possessing a Prohibited Plant (s23(1)(c) & (2)(c))
The maximum penalty for these offences is 15 years imprisonment, or a fine of $220,000.
There are also Commonwealth offences that relate to Possession, and are set out in Part 9.1 of the Commonwealth Criminal Code. These include:
Possessing controlled drugs (308.1)
Possessing controlled precursors (308.2)
Possessing plant material, equipment or instructions for commercial cultivation of controlled plants (308.3)
Possessing substance, equipment or instructions for commercial manufacture of controlled drugs (308.4)
Maximum penalties for these offences range from 2 years of $44,000 to 7 years or $154,000.
What Can North Shore Criminal Law Do For You?
If you have been charged with possession of a prohibited drug, there may be a defence available to you. North Sydney Criminal Law have a wealth of experience successfully advocating on behalf of clients charged with drug-related offences. We can use that experience to help achieve the best outcome for you.
If you are being held in custody, we can come to you and assert your rights. We can offer you advice on your options, including whether to assert your right to silence. We can also recommend the strategy for you, along with negotiating with police, and advocating on your behalf in court.
Call North Shore Criminal Law now on (02) 9955 2298 or our 24 hour Emergency Service on 0400 44 64 24.