Under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW), Possession of a Prohibited Drug is a criminal offence and can attract a maximum penalty of 2 years’ imprisonment and/or a fine of up to $2,200. Although drug possession is generally deemed as a minor offence in comparison to other drug-related charges, the impact of conviction can still be detrimental to an individual’s lifestyle, employment or potential travel plans.
Prohibited drugs are any drug listed under schedule 1 of Drug Misuse and Trafficking Act 1985 (NSW) and include substances such as heroin, cocaine and amphetamines. While the term “possess” generally refers to on-person possession, it is important to be aware that individuals may be charged with drug possession if the substance is found in their car, as an example.
The amount found in your possession also determines the penalties that will be imposed. Traffickable quantities of prohibited substances can potentially warrant a “deemed supply” charge in which it is believed the individual possess the drugs with the intention to supply.
In order to be found guilty of a prohibited drug possession charge, it must be proved beyond reasonable doubt that a prohibited drug listed under schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) was in an individual’s possession and the individual knew it was in their possession or likely to be in their possession. It also must be proved beyond reasonable doubt that the individual knew it was a prohibited drug.
Individuals found guilty of possessing a prohibited drug may face maximum penalties of 2 years imprisonment and/or a fine of up to $2,200. However, in NSW other penalties could be imposed by a Court which can be more favourable for individuals. While the most serious penalty is imprisonment, other penalties that could be imposed for guilty individuals includes home detention, an intensive corrections order (ICO), conditional release orders (with or without conviction), community corrections order, or a fine.
Some individuals may even have their matter dealt with by the means of a section 10 dismissal in which a criminal record is avoided altogether. For the best chance of receiving a section 10 dismissal or conditional release order with no conviction, it is imperative to seek legal advice from experienced criminal defence lawyers such as our professional solicitors at Benjamin Leonardo – The Defenders.
Furthermore, first-time drug possession offenders in NSW usually face less severe penalties in comparison to individuals who have been charged with the offence on more than one occasion.
If you accept that you are guilty of drug possession, pleading guilty will be more favourable in the Court as it shows remorse for your actions and you will receive a discount in your sentence. As a result, the Court may impose on individuals with a lesser sentence.
However, it is also important to understand that if found guilty of drug possession, the maximum penalty is up to 2 years imprisonment and/or a fine of up to $2,200. Typically, the maximum punishment is usually reserved for repeat offenders and individuals with an extensive criminal history. In comparison, first-time offenders typically face less severe penalties and could potentially even have the matter dealt with by a section 10 dismissal or a conditional release order without conviction.
Should you plead not guilty to the charges of drug possession, the prosecution will have to establish and prove beyond reasonable doubt that you, in fact, were in possession of a prohibited drug as listed under schedule 1 of Drug Misuse and Trafficking Act 1985 (NSW). The prosecution must also prove beyond a reasonable doubt that you knew the substance was in your possession, or likely to be in your possession. If the prosecution is unable to prove these facts, beyond a reasonable doubt you will be found not guilty.
If you are found guilty a conviction is likely to follow.
There are many possible defences that a criminal or drug lawyer may use on an individual’s behalf in relation to a drug possession charge. These defences include:
Duress: Encompasses the use of unlawful coercion to persuade a person to partake in an activity they would not usually participate in. This coercion can take the form of harmful threats such as death or grievous bodily harm in which the accused believes that if they do not participate in the activity, they can be at risk.
Necessity: Involves circumstances in which the accused debates that their actions are acceptable and justifiable as they were in imminent danger by either human or natural forces. To prove that acts were a form of necessity, it must be established that the activity was only undertaken in order to avoid particular consequences that are deemed as “irreparable evil”, the individual must believe that they were in a situation of “imminent peril” and that the individual believed they had no other alternatives to avoid the impending threat.
Knowledge: That you were unaware of the existence of the prohibited drug or that you thought that the prohibited drug was some other substance.
Prohibited Drug Possession is classified as a summary offence and is heard in the Local Court. At Benjamin Leonardo – The Defenders, we are experienced criminal lawyers based in Parramatta and the Sydney CBD, however, we have represented clients throughout various Local Courts in NSW. For a full list of Local Courts and to find the closest to you, click here.