Drug Possession NSW – Experienced Drug Defence Lawyers

Possessing a prohibited drug is an offence under Section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

To establish the offence, the prosecution must prove beyond reasonable doubt that:

• You had a substance in your possession,
• The substance was a prohibited drug, and
• You knew a prohibited drug was in your possession.

The term ‘possession’ has been defined by the courts as in your ‘exclusive possession, custody or control’. 

The requirement of ‘exclusive possession’ means the prosecution must exclude any reasonable possibility the drugs were not possessed by you. This is known as ‘the rule in Filipetti’.

The prosecution may find it difficult to do this where drugs were found in the common area of a shared premises, or in a car not exclusively used by you.

Evidence of you being in possession of the drug may be completely excluded in the event it was found during an ‘illegal search’. In such cases, the prosecution case will collapse and the charge against you will be dismissed.

Police may additionally need to pay your legal costs due to their conduct.

The maximum penalty for drug possession is 2 years in prison and/or a fine of $2,200.

Some of the most frequently prosecuted prohibited illicit substances in New South Wales are:

• Amphetamines,
• Cocaine,
• Heroin,
• 3,4-Methylenedioxymethylamphetamine (MDMA, or ‘ecstacy’), 
• Ketamine,
• Buprenorphine,
• Mescaline (magic mushrooms), 
• Anabolic steroids, and
• Cannabis leaf, oil and resin.

In the event you are charged with drug possession, it is crucial to engage drug lawyers with a comprehensive understanding of the law, including the requirements of proof, procedural rules and defences that may be available to you.

The maximum penalty for drug possession is 2 years imprisonment and/or a $2,200 fine.

However, this penalty is reserved for the most serious cases of drug possession.

Courts have the power to make much less serious orders than imprisonment, including ‘non conviction orders’ through what’s known as a section 10(1)(a) dismissal or a conditional release order without conviction.

Engaging the services of an experienced, specialist drug lawyer will maximise your prospects of a positive outcome in the event you wish to plead guilty.

What actual penalties are handed down for drug possession?

According to the Judicial Commission of New South Wales, the penalties imposed for 41,579 drug possession cases that came before the courts are broken down as follows:

If you feel that you have some reason to explain or justify your actions, you may wish to plead ‘not guilty’ and fight the charges. For example, you may be able to argue that:

• You were not aware that the drugs had been planted on you, or you could not find drugs upon you after a thorough search

• Police conducted an illegal search (they did not have ‘reasonable suspicion’ to search you)

• You did not have exclusive possession of the drugs – for example, where the police find drugs in a shared are of your house, such as your lounge room or kitchen

• There was insufficient evidence to prove that you possessed the drugs – for example, where police claim that they saw you dispose of drugs when it is possible that someone else may have put them there.

You may be charged with possession where you have drugs on your person, or in your home or car.

There is no requirement that you have to own the drugs to be charged with possession – it will be enough that you knew, or should have known that you had them. This means that you could even be charged with possession where you were just holding drugs for a friend.

However, if you feel that you have some reason to explain or justify your actions, you may wish to plead ‘not guilty’ and fight the charges. For example, you may be able to argue that:

• You were not aware that the drugs had been planted on you, or you could not find drugs upon you after a thorough search

• Police conducted an illegal search (they did not have ‘reasonable suspicion’ to search you)

• You did not have exclusive possession of the drugs – for example, where the police find drugs in a shared are of your house, such as your lounge room or kitchen

• There was insufficient evidence to prove that you possessed the drugs – for example, where police claim that they saw you dispose of drugs when it is possible that someone else may have put them there.

If you are willing to accept the charges against you, you can enter a plea of guilty.

Pleading guilty at an early stage may be beneficial in some cases, as it illustrates to the court that you are sorry for your actions. Often, an early guilty plea will result in a more lenient penalty.

However, before you enter a plea, it’s important to speak to an experienced specialist drug lawyer as there may be some way in which you can fight the charges and be found ‘not guilty.’

If you wish to plead guilty, it is important to be informed about the types of penalties that you could face.

As drug possession is a summary offence, it can be dealt with in the Local Court, where the maximum penalty is 2 years imprisonment and/or a $2,200 fine.

However, these types of penalties will only apply in the most serious cases. In most cases, it is unlikely that you will be sent to gaol.

The type of penalty that you will receive depends on the facts and circumstances of your case. The court has the power to issue a range of different penalties, including:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• Prison

It’s important to remember that you can increase your chances of getting a lenient penalty by engaging a specialist drug lawyer. A specialist drug lawyer will have the expert knowledge and experience to navigate the law and ensure that you get the best possible result in your case.

In many cases, a specialist drug lawyer may be able to convince the magistrate to issue you with what is known as a section 10 dismissal or conditional release order. This means that while you will be found guilty of the offence, no conviction will be recorded on your criminal history, so you won’t have to worry about how the offence could affect your work or travel plans.

Illegal Search

In some cases, you can have possession charges dropped at an early stage by arguing that the police performed an ‘illegal search.’

For police to be able to search you legally, they must be able to prove that they had what is known as a ‘reasonable suspicion’ that you had an illegal drug. This means that police can’t just search you randomly – they must have some kind of factual basis for their search.

The types of things which might constitute a reasonable suspicion include where a sniffer dog has indicated that you might be concealing drugs, where police have seen you doing a drug deal, or where police can smell cannabis inside your car or house.

Situations which won’t give rise to a reasonable suspicion include cases where police search you just because they think you look nervous or agitated, because you have a prior criminal history of drug offences, or because you’re in an area known for drug crime.

If police aren’t able to prove that they held a reasonable suspicion, we can fight to have the charges against you dropped, even if drugs are found upon you. In some cases, the police might even end up having to pay your legal fees.

However, police will not have to prove reasonable suspicion where you consented to the search. This means that where a cop has asked you whether you’ve got drugs on you, or where they have asked you to empty out your pockets and did so voluntarily, you won’t be able to fight the charge on the basis of an illegal search.

Your best shot at getting charges dropped is to get a good lawyer on your side. At Sydney Drug Lawyers we have helped hundreds of clients get charges dropped without proceeding to court. So call us now and let one of our experienced lawyers show you the best way forward in your case.

Lack of Exclusive Possession

Another way that you can fight the charge is where ‘exclusive possession’ cannot be proved. To be charged with drug possession, the prosecution must prove that the drugs were in your possession and control.

For example, where drugs are found in a common area such as your lounge room, kitchen or bathroom, there may be a possibility that they belong to someone else, like a friend or another family member. In these situations, you can write to the prosecution and ask that the charges be dropped as the prosecution cannot prove that the drugs were yours.

Lack of Evidence

Drug charges may also be dropped where there is insufficient evidence to prove that you possessed the drugs.

This may include situations where police claim that they saw you dispose of drugs when it is possible that someone else may have put them there, or where someone planted drugs upon you and you were unable to find them after a thorough search.

In some cases, you might be able to avoid a conviction or penalty altogether by persuading the magistrate to issue you with a non conviction order, which means that while you’ll be found guilty of the offence, no conviction will be recorded on your criminal record.

There are a number of steps you can take to increase your chances of getting a non conviction order.

• Get Character References: The first thing you can do is try and get some character references to show the court that you are a good person, and that your actions were out of character. You can get character references from any reputable person who can show that you are a person of good character, for example, your employer, a religious or community leader, or a long-term friend. For some guidance on how to write a character reference, look at our page on ‘Character References.’[JF1]

• Write a Letter of Apology: You may also choose to write a letter of apology to the court. In many cases, the magistrate will take into account your remorse in determining a sentence, so this is a great step to take if you are hoping to get a section 10 dismissal or conditional release order. Again, you might want to look at our page on ‘How to write a letter of apology’ for some guidance on what to include in your letter. [JF2]

• Consider Counselling/Rehab, Where Appropriate: You might also want to consider getting some drug counselling or enrolling in a rehab program. This will show to the court that you have taken positive steps to address your drug issues. In many cases, a counsellor or rehab case manager will provide a report to the court outlining how you have tried to resolve your drug issues, which can help you achieve a more lenient sentence. For more information on this, visit our ‘Counselling’ and ‘Rehab’ pages. [JF3]

• Consider the MERIT Program: Something else that you might want to consider is the MERIT Program, which is a program run by the courts to try and help people break the cycle of drug addiction and offending. Again, MERIT will usually provide a report to the court about your progress through the program, which can help you get a more lenient sentence. To find out more about this, visit our page on the ‘MERIT Drug Program.’ [JF4]

• Enter an Early Guilty Plea: Finally, the court may award you a ‘discount’ on your sentence for an early guilty plea. This means that you could get a shorter sentence or a lesser penalty by pleading guilty early on. Remember, it’s always a good idea to speak to an experienced lawyer before entering a guilty plea. They will be able to advise whether you are able to fight the charge or get the charges dropped, which is always better than receiving a penalty.

If prohibited drugs are found in a common area of a ‘shared premises’ (eg lounge room, kitchen, bathroom, backyard, balcony etc), the prosecution must prove beyond reasonable doubt that:

1. one occupant has ‘exclusive possession’ of the drugs; ie the drugs are his or her’s only; or
2. several occupants ‘jointly possess’ the drugs; ie they all share in the exclusive physical control over the drugs.

See: R v Fillipetti (1978) 13 A Crim R 335.

If ‘exclusive drug possession’ is alleged, the prosecution must prove beyond reasonable doubt that none of the other occupants may have possessed the drug, and that no-one else may have left the drugs there eg a visitor.

This can be difficult to prove if the defendant has not made ‘admissions’ (ie confessed to possessing the drugs), or if there is no other evidence linking him/her to the drugs eg fingerprints on resealable bags, incriminating mobile phone messages, witness statements saying they were his/hers etc.

In these types of cases, the prosecution can often be persuaded to ‘drop’ the drug charges at an early stage.

If ‘joint drug possession’ is alleged, the prosecution must prove beyond reasonable doubt that each defendant intended to share in the exclusive physical control of the drugs.

Again, this can be difficult to prove without further evidence; eg mobile phone video of all occupants using the drugs, ‘admissions’ by the occupants, witness statements etc.

It is therefore possible to convince police to ‘withdraw’ these charges early in the proceedings.

Police must follow specific rules before they can search any motor vehicle (see ‘Illegal Searches’ below).

If they follow those rules and find prohibited drugs, the owner or passenger/s of the vehicle may be charged with drug possession.

However, a passenger cannot be convicted of drug possession just because he or she is in a vehicle containing drugs.

There must be evidence that he or she could have exercised control over those drugs, eg used them, taken them away, etc; Harris [1961] Crim LJ 256.

Also, it has been found that the owner of a car containing drugs in the boot is not guilty of drug possession if he did not possess the keys at the relevant time, eg if the keys were with someone else; Barron v Valdamis [1978] ACLD 374.

Also, mere possession of car keys does necessarily prove possession of drugs inside the car, especially if there is evidence that others could have accessed the car, eg if several persons had keys, if a friend recently drove the car, etc ; Amanatidis (2001) 125 A Crim R 89.

The best thing to do is to say nothing, as there may be a way to fight against your drug possession charge.

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

1. Proven Track Record of Exceptional Results

   Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

   Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

   Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

   We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

   Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

2. Highest Level of Client Satisfaction

   We have the best and most comprehensive client review record of any law firm in Australia.

   Regular communication, accessibility and quality service are our team’s highest priorities.

   We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

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3. Australia’s Most Awarded Criminal Law Firm
   

   We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

   The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

4. Fixed Fees
   

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5. Free First Appointment
   

   For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

   We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

6. Specialist Lawyer Guarantee
   

   We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

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7. All NSW Courts
   

   From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

   And we offer fixed fees for most criminal and traffic law cases throughout the state.

8. Accredited Specialists

   Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

   All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

   An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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   Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

9. Results-Focused Law Firm
   

   Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

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10. Team of Lawyers Behind You
    

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12. Convenience
    

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