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Likely Penalties for Drug Possession

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

In NSW, the offence of "Possess Prohibited Drug" carries a maximum penalty of 2 years imprisonment.

There is a very long list of drugs that are illegal to possess. The most common examples include:

  • Cannabis
  • Ecstasy
  • Amphetamines
  • Cocaine
  • Heroin
  • LSD

The Offence of Possessing a Prohibited Drug

The offence of Possess Prohibited Drug is contained in section 10 of the Drug Misuse and Trafficking Act 1985 which states:

A person who has a prohibited drug in his or her possession is guilty of an offence.

What is a Prohibited Drug?

In the Schedule of the Drug Misuse and Trafficking Act there is a very long list of drugs that are illegal to possess.

There is also another category of substances known as "restricted substances". This includes drugs that you can get with a prescription (such as Xanax, or steroids), or chemicals that you need a licence to possess. Possessing those substances without authority is a different, usually less serious offence.

What the Police must prove

Police need to prove a number of factors beyond a reasonable doubt for the court to find you guilty:

  • That you possessed a substance
  • That the substance was a prohibited drug
  • That you knew you possessed that substance

Possible Defences

  • Denying you possessed the drug
  • Denying that you knew you had the drug in your possession
  • Denying that the substance was an illegal drug
  • The Carey Defence (claiming you had temporary possession of someone else’s drug)

What Court will hear your matter?

If you are only charged with possession, then the matter will be decided in the Local Court. However, people charged with possession are often also charged with "supplying a prohibited drug" which is an offence that has to be decided in the District or Supreme Court.

In NSW, a court can impose any of the following penalties for a charge of drug possession:

  • Prison sentence
  • Home detention
  • Periodic detention
  • Suspended sentence
  • Community Service Order
  • Good behaviour bond
  • Fine
  • Section 10 - matter proven but dismissed

You will find a brief description of each of these penalties below.

Types of Penalties

Section 10 - avoiding a criminal record

Normally, when you plead guilty to a criminal or traffic offence the Court imposes a penalty and records a conviction. If the court records a conviction you will have a criminal record. However, if we were able to convince the court not to convict you, there would be no penalty of any type and no criminal record. In all criminal cases a court has the discretion not to convict you but deal with you under the terms of section 10.

Fines

By far the most common penalty imposed by the Local Court is a fine. When deciding the amount of any fine the Magistrate or Judge should consider your financial situation and your ability to pay any fine they set.

Good behaviour bonds

A good behaviour bond is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is 5 years.

Community service order

A Community Service Order (CSO) involves either unpaid work in the community at a place specified by Probation and Parole or attendance at a Centre to undertake a course, such as Anger Management. In order to be eligible for a CSO you have to be assessed by an officer of the Probation service as suitable to undertake the order. Certain medical conditions could exclude you from being suitable to undertake a work order.

Suspended sentence

A suspended sentence (Section 12 good behaviour bond) is a gaol sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the gaol sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to 2 years.

Periodic Detention

Periodic detention is a form of imprisonment. It involves detention in a periodic detention centre for a two day period each week for the length of the sentence set by the court. The two-day period commences at 7.00 pm on the day of the week specified (usually Friday) and ends at 4.30 pm on the second day following the day so specified (usually Sunday).

Prison

This is the most severe form of punishment and involves being locked up in a prison. Before a court imposes a prison sentence it must be satisfied that no other penalty other than imprisonment is appropriate.

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