What Does Drug Possession Mean?
In New South Wales, possession refers to exclusive physical control or custody. This means that for the prosecution to prove that you possessed drugs, they need to prove that you had control of them or they were on your person, as well as that you had an awareness of the existence and nature of the drug. For example, case law has held that where drugs are discovered in a shared, communal area of a residence it can be difficult to prove that it was in the exclusive physical control of the accused person. However, this can be compared to circumstances where drugs are located in someone’s pocket or handbag in which possession will be relatively easy to prove in most cases.
The offence of drug possession relates to substances which are classified as ‘prohibited drugs’. If a substance is classified as a ‘prohibited drug’ it will be listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). Substances listed include cannabis, cocaine, ketamine, ecstasy or MDMA (referred to as ‘3,4-Methylenedioxymethamphetamine’), ice (‘methylamphetamine’), heroin, amphetamine, and LSD (referred to as ‘lysergic acid’). It is important to remember that even small amounts of drugs for personal use can result in criminal charges.
Schedule 1 of the Act also outlines prescribed amounts and corresponding classifications for each listed prohibited drug. For example, the ‘small quantity’ for cocaine, heroin, codeine, and methylamphetamine is 1 gram. It is 2.5 grams for ketamine, and 0.0008 grams for LSD.
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What Must the Police Prove for a Drug Possession Charge?
The police are required to prove the following elements, beyond reasonable doubt:
The substance is a ‘prohibited drug’,
The drug was in your custody or control,
You had an intention to ‘control’ it or an awareness that you had such custody.
In circumstances where possession is in dispute, it will be important to gather supporting evidence such as material or statements which highlight that others had equal or better access to the area or location where the drugs were found. For example, where drugs are located in a car but you aren’t the car’s regular driver or where drugs are located in an area of a shared house and there were many people who had access to the area.
There are also other legal technicalities or procedural flaws that can lead to withdrawal or dismissal. This includes circumstances in which the police have conducted an improper search and/or not complied with safeguards, which could provide an avenue for any evidence obtained as a result to not be able to be utilised in court.
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Penalties for Drug Possession in NSW
There is a maximum penalty of a $2,200 fine and/or 2 years imprisonment applicable for drug possession. Statistics drawn from New South Wales Local Court outcomes reveal that the most common penalty for those who are sentenced in relation to an offence of drug possession is being convicted and fined.
However, there is still the potential to receive a ‘non-conviction’ outcome at court. The court will consider the quantity of the drug, why you were possessing them, if you have any prior record, as well as other personal circumstances. It is also important to remember that with legal representation even repeat offenders can avoid prison.
Prior to being charged, there are also two main diversionary programs.
Instead of charging someone found to be in possession of drugs, police officers can 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. 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.
Furthermore, a penalty notice cannot be issued to someone under 18 or who police suspect is supplying drugs.
If you receive a fine, there is the option of completing a tailored drug health intervention on behalf of NSW Health. Appointments for the service can be booked online or through calling St Vincent’s Health Network.
This involves a phone consultation with a health professional which covers the risk of using drugs and how to obtain further support if you have a drug abuse issue. Once you have completed the health intervention, St Vincent’s Health Network will notify Revenue NSW and the fine will be treated as though it was paid, with the amount essentially waived.
If this intervention is not completed, the fine amount will be enforced by Revenue NSW.
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 of cannabis is under 15 grams.
A person will be ineligible for a caution if they do not admit guilt to possession, have prior convictions related to drug, violence, or sex offences, were also involved in other criminal offences at the time of possession, 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.
The Court Process for Drug Possession Charges
Drug possession cases are almost always heard in the Local Court unless a defendant is also facing different and more serious offences. On the first court date, you will be able to enter a plea of Guilty or Not Guilty in relation to the offence.
If you enter a plea of Guilty, in most circumstances the matter will be able to proceed to a Sentence. If you enter a plea of Not Guilty, the matter will be adjourned for the police to serve a brief of evidence. This may contain statements from police officers, witnesses, police body worn video, CCTV, results of drug testing and any other relevant materials. Once the evidence is served, the matter will be set down for a Hearing which is a court date set aside for the Local Court Magistrate to determine whether the police have proven their case beyond reasonable doubt.
It is important to obtain legal advice prior to the first court date, so you can be accurately advised before entering any pleas formally in court. It can also provide the opportunity for a lawyer to assess whether negotiations occur with the police to seek for charges to be withdrawn, downgraded, or resolved early.
Factors That Influence Sentencing
The penalty imposed for a drug possession offence in New South Wales will vary based on the circumstances of the case. A matter will be considered more serious if it involves factors such as a larger quantity of drugs, you have a history of prior drug-related matters or had possession of drugs near schools or in public.
Case law has held that prohibited drugs should not be treated differently on the basis that some may be viewed as more ‘harmful’ than others. However, statistics drawn from New South Wales Local Court outcomes reveal that convictions are more likely where the offence involves amphetamines, heroin and other opiates or sedatives. Where an offence involves cocaine, ecstasy or hallucinogens, the statistics show that a good behaviour bond, without conviction, is more likely.
Factors that will indicate that leniency ought to be shown in the circumstances include an early plea of Guilty, having no prior criminal history and rehabilitative efforts. Lawyers are able to utilise these factors to secure better outcomes at court. It will assist if you complete a drug program, engage in counselling and with medical professionals, to highlight to the court that you are taking the matter seriously and are addressing any underlying issues.
Defence Strategies for Drug Possession Charges
If you plead Not Guilty to a drug possession charge, common defences include where you had no knowledge of the drug and they were in fact someone else’s. It may also involve circumstances where you had a valid prescription to the prohibited drug (i.e., for medicinal cannabis).
There is also the opportunity to explore whether the police acted illegally or in an improper manner when searching you or your property which can mean that evidence may be inadmissible (i.e., unable to be presented to the court against you).
It is important to seek fast legal intervention to explore these options and determine whether the matter should be contested or whether the focus should instead be on seeking leniency in the circumstances and pleading Guilty.
Why Acting Early on Drug Possession Charges Makes a Difference
Obtaining urgent advice is critical. Early involvement means that there are more opportunities to assess what approach will be best to undertake for court, as well as potential negotiations with the police to seek to downgrade or withdraw charges. Contact Elite Defence Lawyers to ensure you are proceeding with clarity and confidence prior to your first court date.
What to Do Right Now If You’ve Been Charged
It is important to remain silent and not speak to the police without obtaining legal advice. It will also assist to gather evidence including medical materials, character references, and engagement in rehabilitative services. If you are seeking to defend the matter it is important to ensure you document any relevant details, organise any potential evidence such as text messages, photos or possible witnesses.
It is integral to obtain legal advice so you have clarity about what to do. Contact Elite Defence Lawyers to understand your rights and options, and obtain urgent advice. Such immediate action helps your lawyer prepare the strongest case.
Why Choose Elite Defence Lawyers for Your Drug Possession Charge?
Facing a drug possession charge is stressful and can have serious consequences. That’s why it’s critical to have experienced drug possession lawyers on your side. At Elite Defence Lawyers, we have extensive experience handling drug cases across Greater Sydney, including Sutherland, and we know how to fight for the best possible outcome.
We support you at every stage: from the first police interview, to preparing your defence, to negotiating with prosecutors, and representing you in court. Our clients benefit from real results, including withdrawn charges, reduced penalties, and avoided convictions.
What sets us apart? We offer free consultations, so you understand your options up front, as well as fixed fees with no surprises. Don’t risk your future by waiting. Call or message Elite Defence Lawyers today to discuss your case and get immediate guidance from trusted professionals.
