Drug Possession
Facing Drug Possession Charges？
Know Your Rights and Defences
Drug possession is a serious criminal charge under the Drug Misuse and Trafficking Act 1985 in New South Wales. Even for small amounts of illegal substances, including cannabis, ecstasy, heroin, cocaine, and LSD, you can be charged and face significant penalties. For restricted substances, such as Xanax or steroids, possessing them without a licence can also lead to criminal consequences.
Key Points:
- Possessing prohibited drugs is an offence, whether for personal use or otherwise.
- The prosecution must prove the drugs were in your possession and that you knew it was illegal.
- There are legal defences available, including honest mistake or lack of control.
If you're facing drug possession charges, it’s essential to seek legal advice as soon as possible.
At Brightstone Defence Criminal Lawyers, we bring years of experience to help you understand your rights and the best course of action.
Contained in section 10 of the Drug Misuse and Trafficking Act 1985, drug possession is an offence in New South Wales. It is illegal to possess prohibited drugs, including cannabis, ecstasy, cocaine, heroin, and LSD.
Under the Drug Misuse and Trafficking Act 1985 (NSW), possession is treated as a criminal offence, even for small amounts and even if it’s just for personal use.
There are also "restricted substances," which require a licence to possess. These include substances like Xanax and steroids, where possession without a licence is a less serious offence.
Elements the Prosecution Must Prove
To convict someone of drug possession, the prosecution must prove three key things:
- You had a prohibited drug in your custody or control, whether it was on your physical person, in your room, or in your car.
- You knew it was there.
- You knew or should have known it was a prohibited drug.
Possible Defences
Depending on the circumstances, some legal defences to drug possession may include:
- Honest and Reasonable Mistake: If a person had an honest and reasonable belief that the substances they were possessing were not illegal, they would not be found guilty.
- No Control: If the drugs were not in your custody or control, such as if they were temporarily in someone else’s possession.
- Duress: If you were pressured or threatened into holding the drugs.
- The Drug Was Not Illicit: The offender would not be found guilty if the prosecution is unable to prove that the alleged drug is indeed illegal. This can be proven through testing, which must be an unbroken chain of possession.
Potential Penalties
Penalties for drug possession vary based on the drug type, quantity, and your personal record. They can include:
- Fines up to $2,200, with the Magistrate or Judge considering your financial situation and ability to repay.
- Section 10: Often, if you plead guilty to a criminal offence, the court imposes a penalty and a conviction. However, a Section 10 can be granted, meaning no conviction or penalty is imposed.
- Imprisonment for up to 2 years.
- Good Behaviour Bond: A court order requiring you to behave well for a certain period, with a maximum duration of 5 years.
Possession might seem like a "low-level" offence, but it can follow you for life. Seek professional legal advice from Brightstone Defence Criminal Lawyers to navigate this serious charge.
Legal Process
& Options
When facing a drug possession charge, the legal process typically begins with your arrest and may progress to court hearings. During this process, the prosecution will present its case, and your defence team will develop strategies to challenge the charges.
Pleading
Not Guilty
If you plead not guilty, Brightstone Defence will develop a tailored strategy to defend your case, which may involve:
- Proving that the possession or sale of the drug was lawful or permitted.
- Challenging the identification of the substance involved.
- Arguing a genuine mistake of fact.
- Highlighting any procedural or evidentiary flaws in the prosecution’s case.
We will thoroughly examine all evidence, challenge the prosecution's case, and pursue the best possible outcome on your behalf.
Pleading
Guilty
If you choose to plead guilty, your matter will proceed directly to sentencing. Entering an early guilty plea may:
- Reduce legal costs and penalties.
- Show remorse, potentially resulting in a more lenient sentence.
- Increase your chances of receiving a Section 10 dismissal or Conditional Release Order (CRO), helping you avoid a criminal record.
Before pleading guilty, speak with one of our experienced criminal lawyers to fully understand your legal options and the potential consequences.
Legally, manufacturing a prohibited drug typically refers to being included in the production. This could include, for example:
- Going to a friend’s house and helping him operate a pill press
- Buying an at-home kit and making your own MDMA at home
No, it can also include any steps that are part of the production process, such as:
- Mixing precursors
- Assembling lab equipment
- Preparing ingredients with the intent to manufacture a prohibited substance
No, even on a small scale it is illegal. It is a criminal offence under section 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW) regardless of the scale or quantity.
Absolutely. Prosecutors need to prove there was intent to produce a prohibited drug. Mere possession of certain chemicals or tools without intent may not meet the legal definition of manufacturing. However, it is essential to have strong legal support to help differentiate your involvement.
Precursor substances are materials used to make prohibited drugs in NSW.
NSW law restricts unauthorised possession of certain precursors, such as pseudoephedrine, if intended for drug manufacturing.
- Supply involves evidence of distribution or the intent to distribute a prohibited drug
- Deemed supply applies when someone is found with more than the trafficable quantity
- In such cases, the law presumes intent to supply, even without direct proof
Intent to supply may be inferred from evidence such as:
- Text messages arranging deals
- Possession of sealable bags or scales
- Large amounts of unexplained cash
- Being in a known drug distribution area
Yes. Under section 29 of the Drug Misuse and Trafficking Act 1985, if you are found with more than the trafficable quantity, the law presumes intent to supply unless proven otherwise.
Yes. For small amounts (15 to 30 grams of dried cannabis), NSW Police may issue a Cannabis Caution.
The Cannabis Cautioning Scheme:
- Has been in place since 2000
- Is operated by the NSW Police Force
- Was developed after the 1999 NSW Drug Summit
Police have discretion to issue a caution, encouraging legal awareness and health support.
For more serious offences, seek legal advice immediately.
Courts consider factors such as:
- Circumstances of the offence
- Offender’s criminal history and character
- Mitigating factors (section 21A of the Crimes (Sentencing Procedure) Act 1999)
It is rare for a first-time offender to be imprisoned. Alternative sentencing may include:
- Fines
- Community release orders
- Community corrections orders
First-time offenders may avoid conviction by:
- Participating in drug court programs
- Pursuing rehabilitation
- Securing a section 10
- Submitting an apology letter
- Providing character references
Precursor substances are materials used to make prohibited drugs in NSW.
NSW law restricts unauthorised possession of certain precursors, such as pseudoephedrine, if intended for drug manufacturing.
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