Drug Possession
Possession of a prohibited drug is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW). This offence is dealt with in the Local Court.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You had a prohibited drug in your possession.
You knew it was in your possession or likely to be in your possession.
You knew that it was a prohibited drug.
It is not a requirement that you own the drugs to be charged with drug possession. For example, if a prohibited drug is found in your car or you were holding drugs for a friend, you can still be charged with drug possession.
Maximum Penalties
The maximum penalty for drug possession is a fine of 20 penalty units ($2,200) and/or imprisonment for 2 years. The maximum penalty is reserved for the most serious cases. The penalty you will receive will depend on the amount found in your possession, your circumstances, and the nature of your offence.
In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Defences
Some possible defences available to this charge can include:
You were not aware of the existence of the prohibited drug in your possession.
You believed the prohibited drug was some other substance that is not illegal.
Police conducted an illegal search.
You did not have exclusive possession of the drugs if found in a common area (Filipetti (1984) 13 A Crim R 335).
You are a person that is licenced or authorised to possess a prohibited drug under the Poisons and Therapeutic Goods Act 1966 (NSW).
You are a person acting under a poppy licence under the Poppy Industry Act 2016 (NSW).
You are acting under an authority granted by the Secretary of the Department of Health and the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis, or study.
You are acting under a direction given by the Commissioner of Police under section 39Q.
You are a person to whom a prohibited drug has been lawfully prescribed.
You are a person who is caring for another person to whom a prohibited drug has been lawfully prescribed or supplied and, the prohibited drug is in your possession for this sole purpose.