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
Drug possession typically applies when you have physical custody or control over the drug or have the drugs in a place that gives you right, power or ability to take them into your custody.
Custody defines where the drug is, such as in a bag or pocket. Control defines the person’s right to have or use the drug
The prosecution must prove two elements beyond a reasonable doubt:
- The illegal drug was in a person’s custody or control, and
- The person knew they had custody or control of the drug.
You must be found not guilty if the police cannot prove the elements of the offence.
Defences
The drug is not a prohibited substance or plant;
The drug was found in a common area;
Police officers conducted an unlawful search and found the drug;
The person was unaware of the existence of the drug;
Possession of the drug was due to necessity or duress.
Penalties
In New South Wales, a police officer can issue an on-the-spot fine, if a person is found with possession of a small amount of a drug. The penalty notice requires the person to pay a set amount within a stated (28 day) period, however the person can elect to have the matter determined by a court
A penalty notice cannot be issued:
- to a person aged under 18;
- to a person supplying drugs;
- for prescribed restricted substances;
- to a person in possession of more than a small quantity of a drug.
The Court imposed maximum penalty In New South Wales is 2 years imprisonment or a $2,200 court imposed fine, or both.
A drug possession offence may carry with it a criminal record if convicted, which can affect both your career or prospects of travel.
What happens at Court?
You can plead guilty early and prepare you case before the first Court date. You also have the option of pleading not guilty if you believe a defence applies, where the police will need to provide the evidence before the hearing date.
