Will I Go To Jail For A First Offence?
‘Possession of a prohibited drug’ is one of the most common charges dealt with in the NSW Local Court every year. It is often the reason why someone will make their first appearance before the Local Court for a criminal offence, and it is an offence for which people of all walks of life have been charged with. One of the most common questions we get at First Offence Legal is ‘what punishment will I get for a drug possession charge?’ The answer to this question depends on many different circumstances.
If you are caught in possession of a prohibited drug, where the quantity of that drug is below the relevant ‘traffickable quantity’ of that drug, the police can charge you with the offence of ‘possess prohibited drug’ (See schedule 1 of the Drug Misuse and Trafficking Act 1985 for the full list of prohibited drugs and their relevant ‘traffickable quantities’).
If you are issued with a Court Attendance Notice requiring you to attend a Local Court for a Magistrate to deal with your charge, the maximum penalty that can be imposed upon you is a term of imprisonment of 2 years and/or a fine of $2,200. However, these are the maximum penalties, and there are a range of sentencing options available to the court that can be imposed in addition to or instead of a fine or term of full-time imprisonment, such as an Intensive Correction Order, a Community Correction Order or a Conditional Release Order with or without a conviction.
The Judicial Information Research System statistics show that of those coming before the Court’s for a ‘possess prohibited drug’ offence after 24 September, 2018, as a first-time offender and with a plea of guilty having been entered, 69.9% received a Conditional Release Order without a conviction and 12.7% received a dismissal without a conviction. If you receive a non-conviction order, this means you will not get a criminal record. However, just because you are a first-time offender before the court for a drug possession charge, this does not mean you will get a non-conviction order. You should consult a solicitor about your matter before you go to Court.
In NSW, the police also have the power to issue you with an infringement notice if the quantity of the drug you have been found with is below the relevant ‘small quantity’ in schedule 1. The current penalty attached to an infringement notice for drug possession is $400. If you pay the relevant penalty on the infringement notice, you will not get a criminal record.
It appears that the practice of the NSW Police is to only issue infringement notices if you are caught with a prohibited drug at a music festival, however, this practice does not accord with any legal requirement on the NSW Police. It is possible to have a charge of drug possession withdrawn and instead have an infringement notice issued to you instead. Please consult an experienced criminal solicitor to see if this is an option for you.
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 regularly received the client’s desired result at sentencing. Many of our 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 should always make First Offence Legal your first defence.