The offence of possess prohibited drug is found in section 10 of the Drug Misuse and Trafficking Act 1985 NSW which states:
A person who has a prohibited drug in his or her possession is guilty of an offence.
What is the maximum penalty?
In NSW, the offence of possess prohibited drug carries a maximum penalty of 2 years imprisonment and/or a $2,200 fine, although the maximum penalty is reserved for the worst type of offending. In most cases courts deal with possess prohibited drug offences by way of a fine (with conviction), a good behaviour bond (with conviction) or alternatively if the Court is persuaded, a non-conviction result including a good behaviour bond without conviction (formerly known as a section 10 bond).
What do the police have to prove?
There are three elements which the police must prove beyond a reasonable doubt for a Court to find you guilty of the offence of possess prohibited drug. These are:
- That you possessed a substance;
- That the substance was a prohibited drug; and
- That you knew you were in possession of the drug;
- That you had no legal excuse for possessing the drug.
If the police cannot prove each of the first three elements or exclude the fourth element, then the court must find you not guilty of the offence of possess prohibited drug.
What is possession?
The legal definition of possession is interpreted broadly by the Courts. To prove possession, the prosecution must prove beyond a reasonable doubt that a prohibited drug was either in the persons custody (immediate physical possession of the drug) or control (the ability to exercise control over the drug, to the exclusion of all other people with the exception of those people acting jointly with the offender) and that the person knew that they had custody or control over the prohibited drug. However knowledge alone does not amount to possession, for example if a person is with a friend who is carrying a prohibited drug, just because they are aware that their friend is carrying a drug does not make them guilty of possession if the person is not able to exercise control over the drug.
The most common scenario where people are charged with possess prohibited drug arises when a person is searched by police and a prohibited drug is found on their person, whether it is in their clothing (such as a pants pocket) or in a possession of theirs (such as a backpack, handbag, wallet, purse etc.).
However physical possession is not always necessary and a person may also be found guilty of the offence of possess prohibited drug where the prosecution can prove that although the person did not have physical possession of the drug they were nonetheless able to exercise control over the drug.
There are also no time requirements for the offence to be made out and even being in possession of a drug(s) for a limited or temporary amount of time is enough for the law to find a person guilty of possess prohibited drug (for example, holding drugs for a friend or smoking a cannabis joint that was passed to you.)
Drugs found in communal areas
When police locate a drug in a common area such as a living room, kitchen, or bathroom that is shared by multiple people, in the absence of evidence linking the drugs to one or more of the persons a prosecution for possess prohibited drug against any of them will likely fail because the prosecution cannot exclude that the drug belonged to one of the other persons.
Our experienced Sydney criminal lawyers can give you advice on the strength of the prosecution case against you. Call us now to book your first free conference on 1300SILENT (1300-745-368)
What is a prohibited drug?
There is an extensive list of drugs that the law has prohibited in NSW, these can be found in Schedule 1 of the Drug Misuse and Trafficking Act 1985 NSW.
The most common prohibited drugs are:
Do police have to commence court proceedings?
Unfortunately the laws in NSW require that police proceed by way of court attendance notice where a person is found to be in possession of a prohibited drug unless the prohibited drug located is identified as cannabis.
Cannabis Cautionary Scheme
The Cannabis Cautionary Scheme allows police officers to exercise discretion (in appropriate instances) and provide formal cautioning for cannabis offences in lieu of formally charging people with a possess prohibited drug offence where the amount of cannabis located is not greater than 15 grams. The Scheme allows for police officers to consider both the legal and health implications of a person’s cannabis use and the overall triviality of the situation. Further, it allows a person to seek treatment and support for their cannabis use. A person cannot be cautioned more than two times, and if the person has a prior conviction for a drug offence then a caution cannot be given at all.
Which Court will determine my case?
Possess prohibited drug charges are heard in the Local Court. Having said this, if a person is also charged with supplying a prohibited drug, depending on the seriousness of the case the matter may be committed to the District Court where harsher penalties may be imposed.
There are a number of possible penalties which the court can impose on a person who pleads guilty to a charge possess prohibited drug, the following are the most common forms of punishments particularly for persons without a criminal record or a limited criminal record:
Section 10(1)(a) – no conviction recorded
A dismissal under Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 is the lightest sentence that a Court in NSW can impose on an offender. It means that despite the Court finding the person guilty of the offence, the Court will discharge the person without recording a conviction on their criminal record and the Court will not impose any other penalty.
Section 9(1)(b) conditional release order without conviction (previously known as a Section 10 good behaviour bond)
Despite a finding of guilt, without recording a conviction a court may discharge the offender on the basis that the offender agrees to enter into a good behaviour bond for a specified period of time. There are various conditions which the Court can impose as part of a good behaviour bond and the offender will need to obey these conditions for the entire duration of the bond (the maximum length of a bond is 2 years). If the person breaches the good behaviour bond the court may revoke the good behaviour bond and re-sentence the offender to a harsher form of punishment.
Section 9(1)(a) conditional release order with conviction
A court may also sentence an offender to a good behaviour bond whilst recording a conviction. There is no real difference between the Section 9(1)(a) bond and a Section 9(1)(b) bond other than the fact that one carries a conviction and the other one doesn’t. The maximum term of the bond is again 2 years and the court can similarly impose various conditions that the offender will need to obey for the entire duration of the bond. If the person breaches the good behaviour bond the court may revoke the good behaviour bond and re-sentence the offender to a harsher form of punishment.
Recent statistics indicate that the most common penalty for an offence of possess prohibited drug is a fine, the average fine being $300. If the Court decides that a fine is the most appropriate penalty, the court is required to consider the offenders current financial situation and their ability to pay the specified amount. A court cannot impose a fine without recording a conviction.
Other sentences that the Court may impose
In more serious cases of offending or repeat offending the Court may consider imposing harsher forms of punishment including Community service orders (CSO), Intensive Corrections Orders and in the worst case a term of imprisonment.
Our lawyers have a track record in persuading courts not to convict clients charged with possess prohibited drug. Call us on 1300SILENT (1300-745-368) to speak to one of our lawyers right now. We are available 24 hours a day, 7 days a week to give emergency legal advice.
Avoiding conviction – what can the court take into account?
There are wide range of factors which the Court can consider when determining the most appropriate penalty to impose on an offender and whether or not to record a conviction. As few as one or all factors can be taken into consideration based on the circumstances of the case. Some common factors that are taken into account in possess prohibited drug matters are:
- The seriousness of the offending, including the quantity of drug;
- The reason(s) for the offending behaviour;
- The age of the offender;
- The offender’s criminal history;
- Whether the offender is a person of otherwise good character;
- Whether the offending is out of character;
- Whether the offender has shown remorse and insight into their offending;
- Whether the offender plead guilty at an early opportunity;
- Whether the decision to purchase drugs was a spontaneous one;
- Whether the offender assisted and co-operated with the police;
- Whether the offender has taken any steps to rehabilitate themselves;
- Whether the offender has stopped consuming drugs since being charged.
Rehabilitation is an important factor when trying to persuade a court not to record a conviction, the court is legally bound to consider any rehabilitation that an offender has undertaken. The following are some common forms of rehabilitation:
Seeing a psychologist
If the offenders drug use is linked to a mental health condition that the offender is suffering, it is vital to show the court that the underlying mental health issues are being dealt with through professional help. A General Practitioner can issue a mental health care plan which allows a patient up to 7 free sessions with a psychologist.
Self-Management and Recovery Training (SMART Program)
The SMART Recovery Program is a voluntary program that provides counselling, guidance, and education as to the dangers of partaking in drug use and the many problems it causes to the wider community. The program is run all over NSW and usually occurs one night a week. There is no minimum amount of sessions that need to be completed however it is highly recommended that 5 or more sessions are completed in a consistent manner. To find out more about the program visit their website at https://smartrecoveryaustralia.com.au/find-meetings/
Attendance at a drug rehabilitation program
There are number of different programs that are aimed at drug rehabilitation, they include both private and public programs. Some last for a single day and others can occur over a number of weeks. An internet search pertaining to your geographic location is the best way to find a suitable program.
Attendance at a residential drug rehabilitation
In the most serious cases of drug addiction offenders should consider admission into a full time residential drug rehabilitation program. Some common rehabilitation centres include:
Magistrates Early Referral in to Treatment (MERIT)
The MERIT program is designed for offenders with drug problems who are not in custody and can benefit from rehabilitation and treatment. It is a voluntary program and allows for the offender to engage in treatment prior to the court determining their matter. Successful participation in the MERIT program must be taken into account by the Court when determining an appropriate sentence. The court will receive regular reports regarding the offender’s progress throughout the course of the treatment until the court case is finalised.
What do I need to prepare for my sentence?
Obtain character references
Character references written by friends, family members or work colleagues can show the court that the offender is a person of good moral character. The references can express to the court that the offender’s actions were out of character and were an isolated incident. The letters can also corroborate the remorse and insight that the offender has shown in addition to verifying other aspect of the offender’s subjective case.
Write a letter of apology
A letter of apology can help convey an offender’s genuine remorse and embarrassment at being charged with possess prohibited drug offence and outline the impact it has had not only on the offender but the offender’s friends and family. An apology letter is also an effective way of detailing the offender’s subjective circumstances.
Enter a plea of guilty at the earliest possible opportunity
Entering a plea of guilty at an early opportunity not only shows a willingness on the offenders part to accept responsibility for their actions it also legally requires the court to extend to the offender the maximum discount of 25% on the sentence that they would have otherwise received had they not plead guilty.
Consider undertaking some of form of rehabilitation
Partaking in voluntary rehabilitation programs or seeking professional health as suggested above is an important factor that the court must take into account when determining an appropriate penalty.
Why should I choose Australian Criminal and Family Lawyers?
Our highly experienced criminal defence lawyers are experts at dealing with possess prohibited drug charges. We appreciate how important it is for our client’s to avoid the burden of a criminal conviction and we fight to keep our clients records clean. Our familiarity and knowledge of the laws and authorities are second to none which means that you can rest assured that you are getting Sydney’s best criminal law team on your side.
Our lawyers are ready to take calls 24 hours, 7 days a week. Call us now on 1300SILENT (1300-745-368) or alternatively 0448 142 113 to get immediate legal advice.