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Drug possession is a serious offence and it is not a charge that should be taken lightly. Drug possession can have implications not just for you as an individual but for the community as a whole. Drug possession relates to the physical handling of a prohibited drug and having it within your care or on your person can be considered a trafficking act depending on the amount you hold.
Penalties for Drug Possession?
Drug possession can result in several penalties depending on the severity of the charge, the number of charges and the level of prior criminal offending. A repeat offender is always more likely to receive a harsher penalty than a first time offender.
A term of imprisonment is the most severe punishment an individual could receive and the length of imprisonment will be dependent on the severity of the charge. For example 1kg of cocaine as opposed to 200 grams of cannabis are different levels of drug possession.
You could be subject to the following;
- A term of imprisonment;
- A conditional release order;
- A good behaviour bond;
- A community corrections order;
- A fine or monetary penalty;
- A suspended sentence;
- etc.
You will need to seek advice from a team of specialist drug lawyers for advice on which penalty is more or less likely in your specific circumstances.
Pleading Not Guilty
If you proceed with pleading not guilty to the charge of drug possession then you will need to attend court and be subject to a trial/hearing process as a means of resolution. This means that all the evidence is to be tested and a jury will decide whether you are considered guilty beyond a reasonable doubt.
It is a large, expensive and time consuming process as it can take several days for the evidence to be presented and heard. It is also a considerable undertaking in the weeks and months leading up to the trial/hearing date as your lawyer will work to make your case as strong as possible.
At the conclusion of the hearing/trial, the jury will then consider the evidence they have been presented with and determine whether you are guilty or not guilty to the charge. In some instance, there may be multiple charges and a verdict will need to be determined for each individual charge. You can be found to be a mixture of guilty and not guilty.
What is the Cannabis Cautioning Scheme?
The cannabis caution scheme is a process whereby formal cautioning is provided to adult offenders who are detected committing minor cannabis offences. The scheme allows police intervention for minor offending to try and help educate people on the legal and more importantly, health ramifications of cannabis and drug use.
You will receive an on the spot fine for your offending but will not receive a conviction. The aim is to educate so you may receive information regarding drug counselling or attendance at a drug treatment centre to help recovery from the addiction.
Definition of 'Prohibited Drug'
A prohibited drug is an illicit intoxication substance. Prohibited drugs are illegal substances which when used and/or misused can result in serious consequences. Illicit drugs alter the chemical’s in the human body and create reactions which affect the way in which people respond, talk, act, and behave, in many instances leading to criminal behaviour.
Prohibited drugs are essentially ranked on scale of least to most harmful and unanimously the least harmful drug is that of cannabis possession. That is not to say however that cannabis is not bad as some people can react just as poorly to cannabis as they would to any other drug.
Drug possession in NSW is a serious matter and any committed criminal offence involving the presence or use of a prohibited drug will only make the situation worse.
Defences to Drug Possession NSW
There are minimal defences to drug possession as it is difficult to explain how something came to be in your possession without your knowledge or consent. If you are charged with a drug possession charge, your lawyer will need to consider whether a plausible defence exists or whether a weak defence will ultimately cause more harm than good.
Ultimately, you may be able to argue that you were unaware of the presence of drugs within your home or vehicle if you live with other people or allow other people to drive your car. In some narrow circumstances you may also be able to argue that you did not know drugs were present within your baggage or person however these become more challenging depending on your circumstances. Ultimately, if you are found to be in possession of drugs you claim to have no knowledge of, you have been set up by someone you know.
How can I avoid a conviction if I plead guilty to a drug possession charge?
It is difficult to avoid a conviction with a plea of guilty however in some circumstances your lawyer can negotiate for you to plead guilty but you will not record a conviction. You may still be subject to a fine or period of good behaviour but you may avoid having a permanent record.
If you can successfully argue that you have made a mistake or that you should be given a second chance then there is a possibility the prosecution or Magistrate will impose a penalty without a conviction. It is a chance for you to demonstrate that you can rehabilitate and that you can learn from your mistakes.
Getting legal help for drug possession charges in NSW
It is critical to seek legal advice as soon as possible for criminal charged and you will need to seek assistance from an expert criminal lawyer. A criminal lawyer will be able to assist you with the following;
- Whether you should plead guilty or not guilty?;
- Whether you are likely to receive a criminal conviction?;
- What the consequences would be of receiving a criminal conviction?;
- What the minimum or maximum penalty would be for a conviction?.
It is important that you tell your lawyer any and all information that may assist them in defending you against the charge.
Criminal law matters fall under the assistance of legal aid (if you satisfy the eligibility requirements) and you may be able to receive government funding to assist with representation. If you are required to pay privately for legal advice then you will need to engage a private law firm.
Types of Penalties a Court Can Impose for Drug Charges in NSW
Drug charges are serious offences and a range of penalties can be imposed if a guilty determination is made. Illegal drugs are a risk to not only the individual but the broader community as well and as such the penalties imposed are aimed at deterring both the individuals behavior as well as acting as a general community deterrent so that people do not also make the same decisions and mistakes.
Below is a list of the penalties you could be subject to;
- A term of imprisonment;
- A fine or monetary penalty (including the payment of court costs);
- A suspended sentence;
- A good behavior bond;
- A community corrections order;
- Etc.
A term of imprisonment is the most serious penalty that a court can impose however there can be other penalties which impose stricter obligations. If you are granted a community corrections order for example you may be subject to random drug tests, curfews, police station check in’s, regular weekly check in’s with your community correction officer, etc.
The aim of any penalty you could receive is to deter you from engaging in the same behavior or criminal offending in the future however, many of the programs aim to rehabilitate the offender as well. You may be asked to take place in drug rehabilitation programs or even a period of time within a rehab facility.
How to Get Drug Possession Charges Dropped?
Drug possession charges will only be dropped in circumstances where the police realize you have not committed the offence or in circumstances where there is a lack of evidence to support you being found guilty of the charge.
Substantially, drug possession charges are difficult to have dropped as in order to be arrested for drug possession you would need to physically be found to have drugs on your person or in your vehicle for example. It would therefore be difficult for you to suggest that you did not have drugs in your possession.
In the event that you are successful in arguing that you did not know there were drugs present within your home, in your possessions or in your vehicle, it is likely that you will have some knowledge of who the drugs belong to. If you do not provide police with all the information you hold then you could be at risk of other charges being laid.
In some rare circumstances, prosecution may drop the charges after they have been filed as a result of lack of evidence but this is really a case by case situation.
In exceptionally rare situations, your charges may be dropped if it can be proven that you were subject to an illegal arrest or illegal conduct during the course of the investigation.
What is the Drug Misuse and Trafficking Act 1985?
The Drug, Misuse and Trafficking Act 1985 is the legislation for criminal drug offending. The legislation will set out the definition of a prohibited drug, the principles of drug misuse and the minimum and maximum penalty you could be subject to.
Prohibited drugs under the Drug Misuse and Trafficking Act refer to any form of illegal drug. The act is not something that you should consider or interpret without expert advice as an incorrect interpretation can lead to significant consequences.
What Court Will My Matter Be Heard In?
There are two different courts where your matter could be heard, the Local court or district court as it is known and the Supreme Court. The local court considers summary offences and is dealt with by way of a Magistrate and the Supreme Court considers indictable offences and is determined by way of judge and jury.
The local and district court deal with matters which are more minor in nature whereas the Supreme Court considers the matters which are more serious. Depending on the quantity, drug possession can be heard in either court, however, drug supply matters are usually indictable in nature.
If you have been charged with a drug offence or drug offences then you will receive a court attendance notice requiring you to attend court on a specific day and time in the New South Wales court. Your court attendance notice will advise what charges have been laid and how many of each charge has been laid. This will be critical information for your criminal defence lawyers.
Why Choose Jameson Law?
If you have been charged with a drug possession offence then Jameson Law are your first point of call. They have a team of qualified, expert criminal lawyers ready to assist you with any criminal charged you may be subject to.
They will be able to advise you of all aspects of your matter inclusive of the minimum and maximum penalty for your crime, whether you will hold a criminal record and whether you should be considering pleading guilty or not guilty for your offence.
What Must Police Prove in Drug Possession Offences?
If you have been charged with a drug possession offence then it will be necessary for the prosecution to prove beyond a reasonable doubt that are guilty of that offence. Drug possession charges are usually not to difficult to prove because the individual will be physically found with the drugs in their possession.
The core element of the charge is that the accused was found with the drugs either on their person, within their home or within their vehicle. If the drugs are found on their person then the case is mostly contentious however if the drugs are found in a home or vehicle they may belong to a larger group of people. It really then falls to the police to prove that the person they arrested was the person who owned the drugs.
How Long is the Jail Sentence for Drug Possession?
The jail sentence for drug possession depends on the severity of the amount possessed. The sentence can be anywhere from a few months to several years (a maximum of 15 years) and can have varying different non-parole periods. The larger the quantity, the longer the term.
Your jail sentence can also depend on how many different types of prohibited drugs you have been caught in possession of. Drug trafficking is a more severe charge and can carry a jail term of up to 30 years depending on the circumstances.
Can drug possession turn into deemed supply?
Drug possession can become deemed supply if the amount in your possession is significant. A minor drug possession charge is unlikely to be deemed supply because a personal quantity is not able to generate an income. A larger quantity however which could be sold for street value and circulated throughout the community is a different matter.
Your criminal defence lawyer will be able to explain whether you are at risk of being charged with further drug offences such as trafficking. The criminal justice system aims to break apart networks of drug supply.
What is a Drug Supply Charge?
A drug supply charge is different to a drug possession charge as it is the act of physically supplying a prohibited drug for sale. Drug supply is in some circumstances, a far more serious charge than drug possession offences as it actually becomes a trafficking matter which under criminal law carries a maximum penalty.
Supplying Drugs to Minors
Supplying drugs to minors is a serious and dangerous matter and it is viewed harshly by the court. You can receive hefty fines, terms of imprisonment or other penalties. Providing prohibited drugs to minors is classed as a more serious matter than supplying drugs to adults as minors are a more vulnerable class of society.
Is Cocaine Legal in Australia?
There are no drugs that are legal in Australia aside from prescription medication. The use of prescription medication is only legal so long as you are the physical owner of the prescription and you are abiding by the prescribed dosage and amount specified on the prescription.
All other drugs, including cannabis, are not permitted in Australia and can only be obtained through illegal means.
