Drug possession is an offence under section 10 of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 2 years full time custody and/or a fine of $2200.
What Constitutes As Drug Possession?
An offender will be in possession if they have a prohibited substance in their control. What constitutes a prohibited substance is set out in schedule 1 of the Drug Misuse and Trafficking Act 1985. What constitutes having control of a substance can vary, most commonly it involves having physical control or where the offender has the substance in a place where the offender has access. An example of this would be hiding drugs inside your house or car.
What Must The Police Prove?
To be found guilty of possessing a prohibited drug the police must prove the following:
- That you were in possession of a prohibited drug.
- You knew that it was in your possession.
- You believed that it was a prohibited drug.
Possible Defences For Drug Possession
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
Filippetti
For you to be found guilty of the offence the prosecution must prove that you had possession of the prohibited drug to the exclusion of all others. The case of Filippetti provided a scenario where the drugs were found in the living area of a house occupied by 5 people as well as the accused. The prosecution were unable to negate the possibility that the drugs were in the possession of someone else and thus the accused was found not guilty of the offence.
Lawful Possession
It is a defence to the charge of possess prohibited drug where the possession is for lawful purposes. It is the onus of the defendant to demonstrate that they have a lawful purpose for having the drug in their possession
Penalties for Drug Possession In NSW
This offence offers the Court a wide range of sentencing options, ranging from dismissals to periods of imprisonment. For first offenders the Court will often sentence an offender to be of good behaviour for a period specified by the Court. This is done by way of a conditional release order. The Court will also have the option after taking into account all relevant circumstances to not record a conviction against the offender.
The Court may impose any of the following conditions:
Fine
Where a monetary penalty is prescribed under legislation the Court is able to finalise matters by way of fine. This normally is a reflection that the type of offending is of lower objective seriousness but that some form of penalty must be imposed.
Conditional Release Order
Conditional release orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CRO’s can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CRO’s can also have a supervision condition. Court’s have discretion to not impose a conviction on a CRO, if they consider it appropriate. CRO’s can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Correction Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an intensive correction order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as, supervision by community correction officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCO’s can be imposed for a period of up to three years.
Intensive Correction Order
An intensive correction order (ICO) is a custodial sentence that the Court decides can be served in the community. Community safety is the Court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Court’s must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICO’s are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the Court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time Imprisonment
Full time imprisonment is the most serious penalty a Court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the Court will apply a non-parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the non-parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book A Free Consultation For A Drug Possession Charge
Drug possession charges are among the most common criminal offences that people are charged with. Our lawyers at first offence legal have an outstanding track record in representing clients who are charged with possession. We have successfully defended charges and received outstanding results on sentence. Many clients have walked away without having any conviction recorded.
If you, or anyone you know, has been charged with possessing a prohibited drug, you should contact First Offence Legal and book a free, no obligation consultation. Remember you can always make First Offence Legal your first defence.