POSSESSION OF A PROHIBITED DRUG
What is Drug Possession?
Drug Possession is a crime in New South Wales under 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.”
Schedule 1 of the Act contains an exhaustive list of all Prohibited Drugs in NSW. Some drugs are always prohibited (e.g. Cocaine), but some are prohibited unless properly prescribed to you (e.g. Methadone). The list in Schedule 1 also sets out the quantities for other drug related offences, like Trafficking or Supply.
A Prohibited Drug cut or mixed with a legal substance is still a Prohibited Drug – the purity of the drug is not relevant.
Possession can be temporary. In NSW, being passed Prohibited Drugs momentarily, or holding them on a temporary basis for a friend is no defence to a Possession charge.
Examples of Drug Possession:
- A gram of cocaine found on your person (e.g. in your hand, or in your pocket).
- Three caps of MDMA found in your bedroom at your house.
What the Prosecution need to prove:
For you to be found guilty of Drug Possession, the Police and Prosecutor must prove beyond a reasonable doubt that:
- The drug is a Prohibited Drug; AND
- The Prohibited Drug was in your possession:
– It was in your custody, being your immediate physical possession (e.g. on your person); OR
– It was in your control (e.g. you have the ability to do something with it, like give it to someone, take it somewhere, or consume it).
- You knew the Prohibited Drug was in your possession. Your knowledge can be inferred from the circumstances (e.g. if the Prohibited Drugs are hidden in your underwear, the Prosecution are likely to argue that it is inferred from the circumstances that you knew they were there).
Which Court will your Drug Possession case be heard in?
Drug Possession charges are dealt with summarily, which means they are finalised in the Local Court, before a Local Court Magistrate.
Defences to the charge of Possession of Prohibited Drugs:
- The Prosecution cannot prove the elements of the offence of Possession of a Prohibited Drug.
- Honest and reasonable mistaken belief that the substance was not a Prohibited Drug.
- Lack of exclusive possession (e.g. the drugs were in a common area of a shared house).
- You have a licence for possession of the Prohibited Drug under the Poisons and Therapeutic Goods Act 1966.
- You are in possession of poppy plant parts, and have a Poppy Licence under the Poppy Industry Act 2016.
- You have an authority from the Department of Health and possess the Prohibited Drugs for a scientific research purpose.
- You are acting in accordance with a direction by the Commissioner of Police to destroy the Prohibited Drugs.
- You have been prescribed the Prohibited Drug.
- You have the care of or are assisting in the care of another person who the Prohibited Drug was prescribed and are in possession of the Prohibited Drug to administer or assist in administering it to the prescribed person.
Maximum sentences for Drug Possession charges:
Imprisonment for a maximum of two years, and a maximum fine of 20 penalty units, which is $2,200.
Don’t panic. Maximum sentences are usually reserved for the worst type of offending, when a defendant has a long criminal history. If you decide to plead guilty to a charge of Prohibited Drug offence, your lawyer will help you identify mitigating factors the sentencing court will take into account. For more on likely sentencing considerations and outcomes for Possession of a Prohibited Drug offence in your circumstances, see our sentencing information.
A package containing Prohibited Drugs waiting for you at your local Post Office could still be found to have been in your possession, if it has your name on it and you were the only person able to collect (control) it.
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