Possess prohibited drug is a criminal offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW).

It is one of the most prevalent criminal offences in New South Wales.  

While there are some potential defences to a charge of possess prohibited drug, most people who are charged with this offence decide to plead guilty. 

The offence carries a maximum penalty of 2 years imprisonment.  

Although most people do not receive a prison sentence for this offence, a conviction can still have important consequences for your employment and your ability to obtain or hold certain visas in Australia and overseas.

Our Sydney-based criminal lawyers have extensive experience representing persons charged with drug possession.  Contact us today on (02) 9268 0444 to arrange a consultation with one of our experienced criminal lawyers.

What does the prosecution need to prove?

For you to be found guilty of the offence of possess prohibited drug, the prosecution must prove beyond reasonable doubt the following:

1. You possessed a substance;

2. The substance was a prohibited drug;

3. You knew that you had a prohibited drug in your possession or you believed that there was a significant or real chance that there was.

What is possession?

In order for you to possess a prohibited drug, it needs to be in your physical custody or control.

Most people who are charged with possess prohibited drug have the drugs in their custody, for example, in the pocket, underwear, wallet, purse, etc.  However, this is not actually necessary.  So long as you have the ability to exercise control of the drug, you will be in possession of it. 

In order to possess a drug, you also need to know that it is in your custody or control.  We will discuss this below.

It is important to note that there is no minimum amount of time that you need to possess the drug in order to be guilty of this offence. You can be guilty of this offence even if your possession was momentary or fleeting.

What if the police find the drugs in an area shared by you and other people?

It is common for the police to find drugs in areas that are shared by more than one person, such as common living spaces in houses/apartments or cars with more than one occupant. 

If this happens and the prosecution alleges that you had exclusive possession of the drug, it must be proven that no one else was in possession of the drug.  This is what is commonly referred to as a “Filippetti” case, because Filippetti was the surname of the defendant in one of the leading cases involving exclusive and joint possession of drugs.

Does it matter if you do not own the drug?

Possession is not the same as ownership.

The prosecution does not need to prove that you owned or bought the drug for you to be guilty of possess prohibited drug.

So long as you were in possession of the drug, you will be guilty of the offence, regardless of who bought it and whether or not it was yours to consume.

What is a prohibited drug?

A prohibited drug is any of the substances specified in Schedule 1 of the Drug Misuse and Trafficking Act 1985.

Some common examples of prohibited drugs are the following:

• • Cannabis
  • Cocaine
  • MDMA / ecstasy (3,4-methylenedioxyamphetamine)
  • Ice (methylamphetamine / methamphetamine)
  • LSD (Lysergic acid)
  • Heroin

What do you need to know to be guilty of drug possession?

To be guilty of the offence of drug possession, you need to either:

• • Know that you had a prohibited drug in your custody or control; or
  • Believe that there was a significant or real chance that there was a drug in your custody or control.

Can you be guilty of drug possession without knowing you possessed a drug?

If you did not know or believe that there was a real chance that you had a prohibited drug in your possession, you cannot be guilty of possessing a prohibited drug.

For example, if someone puts a package containing cocaine inside your bag without telling you and you did not see it, you would not be guilty.  

Another example is where a friend gives you a package containing cocaine and asks you to put it in your bag. If you did not know that there was a drug inside the package, you would not be guilty.  However, if you believed that there was a real chance that the package contained a drug, you would be guilty.

Can you be guilty of drug possession without knowing which drug you possessed?

So long as you know or believe there is a real chance that you have a drug in your possession, you will be guilty, regardless of whether you know which actual drug it is.  

For example, if you think that you have some cocaine on you but really it is methamphetamine, you will still be guilty.

Can you be guilty of a trace amount of a prohibited drug?

In some cases, the quantity of prohibited drug in your custody might be so small that you cannot be guilty of possessing it.  

This may be where the quantity is so minute that it is invisible to the naked eye or where the amount of material is so small or so dispersed or mixed up with other material that it cannot in practice be used in the way contemplated by the legislation.  In such a case, the Court may find that you do not have the necessary knowledge to be guilty of drug possession.

How can you defend a charge of possess prohibited drug?

There are various ways that you may defend a charge of possess prohibited drug.  These include the following:

• • You were not in possession of any substance.
  • You were in possession of a substance but it was not a prohibited drug.
  • You did not know or believe that there was a real chance that you were in possession of a prohibited drug.
  • You were lawfully prescribed the drug, for example, medicinal cannabis.

What is a “Filippetti defence”?

The expression “Filippetti defence” is sometimes used by criminal lawyers in situations where a drug is found in a common area and the defendant denies possession.  

In order to prove that the defendant possessed the drug in such a case, the prosecution will need to exclude the possibility that one or more other persons possessed the drug rather than the defendant.  The prosecution will need to do so beyond reasonable doubt. 

If the defendant’s lawyer successfully argues that the prosecution has failed to negate the possibility that the drug was possessed by someone else and not the defendant, the Court must find the defendant not guilty. 

What is the penalty for drug possession?

Sentencing options

If you plead guilty or are found guilty of possessing a prohibited drug, the Court must decide what penalty to impose on you.  

There are various penalties that a Court can impose for an offence of drug possession, including: 

• • Conditional Release Order;
  • Fine;
  • Community Correction Order;
  • Intensive Corrections Order; and
  • Full-time imprisonment.

The maximum penalty for an offence of possess prohibited drug is 2 years imprisonment.   

Our Sydney-based criminal lawyers can assist you to receive the most lenient sentence that is possible in all of the circumstances.  

Relevant factors to be considered when sentencing

When the Court decides what penalty to impose for an offence of drug possession, it will consider a wide range of factors.  These considerations are generally divided into objective and subjective factors.  

Objective factors relate to the offending itself, while subjective factors relate to you.

Some key objective sentencing factors include the following: 

• • What was the weight of the drug?  In general, the greater the quantity, the more serious it will be.
  • How many drugs did you possess?  In general, the possession of more than one drug will be more serious than the possession of a single drug. 
  • How long were you in possession of the drug?  In some cases, possession for a long period will be viewed by the Court as more serious than possession for a short amount of time.

Some key subjective sentencing factors include the following: 

• • Whether you pleaded guilty;
  • Your age
  • Whether you are remorseful (sorry) for your conduct;
  • Whether you have issues with drug use and, if so, what steps you have taken to address them, such as drug counselling, treatment or rehabilitation (see below);
  • Your criminal record and whether you have any prior convictions; 
  • Whether you are otherwise of good character;
  • Your likelihood of reoffending.

Can you avoid a criminal conviction? 

As with any offence, the Court has the power to not record any criminal conviction against you for an offence of possess prohibited drug.

Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court can make any one of the following orders without recording a criminal conviction: 

1. Direct that your charge of drug possession be dismissed;

2. Discharge you under a conditional release order; or

3. Discharge you on the condition that you enter into an agreement to participate in an intervention program.

In deciding whether to record a criminal conviction, the Sentencing Magistrate or Judge will consider the objective and subjective factors discussed above as well as the following further factors contained in section 10(3):

(a) Your character, antecedents, age, health and mental condition;

(b) The trivial nature of the offence;

(c) The extenuating circumstances in which the offence was committed; and

(d) The other matter that the Court thinks proper to consider.

Will you go to jail?

It is uncommon for people to be sentenced to full-time imprisonment for an offence of possess prohibited drug.  However, it is still possible, for example, in cases where you have a lengthy record of drug offences.  

What sentence do most people receive? 

According to statistics published by the Judicial Commission of New South Wales in relation to all persons sentenced in the Local Court for the offence of possess prohibited drug: 

• • The single most common penalty was a fine.
  • Approximately 24% of all offenders avoided a criminal conviction.
  • Only 1% of all offenders received a sentence of full-time imprisonment. 

What documents should you prepare for your sentencing?

There are various documents which you should prepare for the Magistrate in order to assist you to achieve the best possible result at your sentence hearing.  

Some of the more common examples of these documents are as follows:

Your letter to the Court

In most cases, it will assist if you write a letter to the Court that addresses at least the following topics:

• • Some background information about you;
  • Why you committed the offence;
  • How you feel about committing the offence (that is, whether you are sorry for your conduct);
  • The lessons you have learnt from this experience;
  • Why you will not reoffend in the future; and
  • The potential consequences for you if the Court were to record a criminal conviction when sentencing you.

Character references

In most cases, it will assist if you obtain at least 2-3 character references from people who know you.  

The character references should be in the form of a letter and should generally be no longer than 2 pages.  

Ideally, you should obtain the references from a mix of sources, for example, family members, friends and colleagues. 

Your lawyer will advise you about the topics that the character references should cover however in general they should at least address the following:

• • For how long and in what capacity the referee has known you;
  • What the referee thinks of your character generally;
  • What comments the referee can make in view of your commission of the offence; and
  • Any changes in you that the referee has observed since your commission of the offence.

The referee should make clear that he/she is aware that you have pleaded guilty to an offence of possess prohibited drug.

Evidence of drug rehabilitation

If you have issues with drug use but have taken steps to address those issues, many Magistrates will show additional leniency when sentencing you.  In some cases, it may be the difference between a criminal conviction being recorded and a section 10. 

There are many ways that people can address their drug use, including the following:

• • Seeking professional help from a counsellor or psychologist;
  • Participating in SMART Recovery online meetings, which is an internationally recognised addiction treatment program; 
  • Attending meetings held by Narcotics Anonymous or similar organisations;
  • Attending a full-time residential drug rehabilitation program, such as Odyssey House, The Sydney Retreat, or Foundation House.
  • Participate in the Magistrates Early Referral into Treatment (MERIT) Program, which is a voluntary pre-plea scheme to help treat adult offenders with admitted illicit drug use problems.

If you can obtain evidence of your participation in one or more of the above and/or evidence of urine or blood tests evidencing your abstinence from drug use, it will be more likely that the Court will be willing to not record a criminal conviction when sentencing you.

Do you have to go to Court for a drug possession charge?

If the police find prohibited drugs in your possession, they have the discretion to either:

• • Issue you with a Court Attendance Notice;
  • Issue you with a penalty notice; or
  • In some cases involving cannabis, issue you with a caution. 

Court Attendance Notice

A Court Attendance Notice is a document that requires you to attend Court as a defendant in criminal proceedings.

Penalty Notice

A penalty notice is an on-the-spot fine, such as those that are issued for many minor traffic offences.  

Since 2019, the police have been able to issue penalty notices if the quantity of prohibited drug you possess does not exceed a certain weight.  The relevant weight differs from drug to drug but some common examples are as follows:

• • Cocaine: 1 gram or less;
  • MDMA (in capsule form): 0.25 grams or less;
  • MDMA (in any other form): 0.75 grams or less;
  • Methamphetamine: 1 gram or less
  • LSD: 0.0008 grams or less
  • Heroin: 1 gram or less;
  • Ketamine: 2.5 grams or less;
  • GHB: 10 grams or less.

If the police issue you with a penalty notice and you pay it, you will not need to go to Court and no criminal conviction will be recorded.

Can you ask for a penalty notice instead of a Court Attendance Notice?

If the police find prohibited drugs on you and say that they are going to issue you with a Court Attendance Notice, you should ask for the officer to issue you with a penalty notice instead. 

If the officer refuses to issue you with a penalty notice and instead issues you with a Court Attendance Notice, it is still possible for this decision to be reversed later.  Your lawyer can negotiate with the police on your behalf to seek for the charge to be withdrawn on the basis that a penalty notice is issued. 

Cannabis Caution Scheme

The Cannabis Caution Scheme is a diversion strategy that allows for adult offenders found to be in possession of cannabis to, in some cases, be formally cautioned instead of being issued with a Court Attendance Notice or penalty notice.

The police can only issue cannabis cautions in certain circumstances, including the following:

• • You are not caught with more than 15 grams of cannabis;
  • The cannabis was for your personal use;
  • You have not received two or more cautions previously; and
  • You have prior criminal convictions for drug, violence of sexual assault offences.

A cannabis caution warns of the potential health and legal consequences of cannabis use and provides contact details for the Alcohol and Drug Information Service.

If you receive a cannabis caution, you will not have to go to Court and no criminal conviction will be recorded.

In which court is a drug possession case heard?

The offence of possess prohibited drug is a summary offence, which means that it can only be heard in the Local Court.

How we can help

Our criminal lawyers have extensive experience in drug possession matters.  We have appeared in many of Australia’s most high-profile drug cases over the last 12+ years.  

Our experience and expertise enable us to achieve excellent results for clients facing prosecution for possess prohibited drug offences.  

Our criminal lawyers can assist you through the entire criminal justice process, from your initial arrest or receipt of a Court Attendance Notice until the conclusion of your case.  

We will provide you with comprehensive advice as to your prospects of successfully defending the charge and what penalty you are likely to receive if you were to plead guilty.  

If you plead not guilty, our criminal lawyers will maximise your prospects of being found not guilty.  

If you plead guilty, we will assist you to achieve the most lenient possible result at your sentencing.  

Key services

• • Advising you on your prospects of success and the relevant laws, including the Drug Misuse and Trafficking Act 1985 (NSW) and Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Drafting representations to the prosecution to withdraw charges
  • Plea negotiations with the prosecution
  • Appearing at Local Court hearings and sentence proceedings
  • Appearing at appeals against conviction and sentence
  • Developing defence litigation strategies 
  • Engaging third party experts, such as forensic chemists and pharmacologists/toxicologists

Is there such a thing as a “drug possession lawyer”?

You might have seen the websites for some criminal law firms use terms such as “drug lawyers”, “drug possession lawyers”, “possess prohibited drug lawyers”, “Sydney drug lawyers” or “drug possession lawyers Sydney”.  You should understand that these law firms do this simply for the purpose of search engine optimisation, i.e., to improve their ranking on Google when people use certain search terms, such as “drug possession lawyer Sydney”. 

The reality is that there is no such thing as a “drug possession lawyer”.  The kind of lawyer that handles drug possession cases is a criminal lawyer.