The Penalties for Possessing Cocaine in NSW

by Ugur Nedim & Amy Sarcevic

“It’s just a bit of fun, I’m not hurting anyone. Everyone does it. It’s better than getting out of control on alcohol.”

Indeed, the use of cocaine – a drug once used in soft drinks like Coca-Cola – is prevalent in our country, with an estimated 9% of Australians aged 14 and over having used the substance at some point in their lives.

But although usage may be common, it doesn’t detract from the seriousness of cocaine possession in the eyes of the law.

Possession of this highly-addictive recreational stimulant is a criminal offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of two years in prison.

There are, however, a range of factors which may affect your penalty, criminal culpability, or likelihood of a conviction.

Mental health

If you are suffering from a mental health condition, your lawyer may advise you to make an application for your cocaine possession case to be dismissed under section 32 of the Mental Health (Forensic Provisions) Act 1990, on the condition that you enter into a mental health treatment plan of up to six months.

In this case, your lawyer will arrange to obtain a report from a mental health professional outlining your background, diagnosis, and reasons why it is more appropriate to deal with you by way of a treatment plan, than otherwise in accordance with the law.

It’s important to note that that you do not need to plead guilty to make a ‘section 32 application’; and that a dismissal under this section does not amount to a finding of guilt against you, nor a criminal conviction.

Deemed Supply

The quantity of cocaine you had in your possession is significant. If you were found with a ‘trafficable quantity’, you can be charged with drug supply, merely for possessing that quantity. This is known as ‘deemed drug supply’. In New South Wales, a quantity of cocaine is considered trafficable if it exceeds three grams.

If you are charged with deemed supply, you will need to establish ‘on the balance of probabilities’ that you had the quantity of drugs in your possession for something other than supply, i.e., for personal use only.

Deemed supply is an indictable offence, which means it may be referred from the local court to a higher court, such as the district court.

Even if police choose not to charge you with deemed supply, a larger quantity of drugs can lead to a more severe penalty in the event you plead guilty, or are found guilty of possession. This makes it more difficult to avoid a criminal record, under the provisions which allow a magistrate to ‘let you off’ without a record.

These provisions include dismissals under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) and conditional release orders without convictions, which are good behaviour bonds for up to two years.

Sentencing factors

In the event of a guilty plea for drug possession or supply, there are a range of other factors which may affect the sentencing process.

These factors are listed in section 21A of the Sentencing Act and include things like ‘aggravating’ or ‘mitigating’ factors.

‘Aggravating factors’ could be where an offence was committed for financial gain or in the presence of children. This can lead to a more severe penalty than might otherwise have been administered.

‘Mitigating factors’ could include having a clean criminal record or other evidence of good character; having good prospects of rehabilitation; or being considered unlikely to reoffend. The presence of these can result in a more lenient penalty, or even help a person avoid a criminal record.

Mitigating factors can be established by obtaining character references, writing a letter of apology to the court, undertaking counselling, or participating in rehabilitation programs such as the MERIT program.

 Grounds for getting drug possession charges dropped or thrown out of court

It’s important to bear in mind that being charged with cocaine possession does not mean you should necessarily plead guilty.

In fact, there are circumstances in which the prosecution can be persuaded to withdraw the charge, or to have the charge thrown out of court if it proceeds to a defended hearing.

These include instances such as:

  1. The search of you, your car or your premises was illegal. If the police did not have a warrant or a ‘suspicion on reasonable grounds’ to conduct the search.
  2. If the prosecution cannot prove that you had exclusive possession of the drug. if several people live at your premises and drugs were found in a common area, such as the lounge room or kitchen.
  3. If you did not know you possessed the drug e.g. if someone put the substances in your clothing.

You may also have a valid defence to the charge, such as ‘duress’ which is essentially where you were forced to hold the drugs under threat of harm.

Going to court for drug possession?

If you are going to court for possessing cocaine or another prohibited drug, it is important to seek advice and representation from a specialist criminal law firm that is experienced in representing clients for drug possession charges.

The team at Sydney Criminal Lawyers is vastly experienced in representing clients in these matters in courts throughout New South Wales, and has an outstanding track record of having charges withdrawn or dismissed, or helping clients to avoid criminal records if they wish to plead guilty.

So, if you are going to court for drug possession, call us anytime on (02) 9261 8881 to arrange a free first consultation with an experienced drug defence lawyer.

Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience in criminal defence. He is the Principal of Sydney Criminal Lawyers®.

Amy Sarcevic

Amy Sarcevic is a freelance media, blog, technical and copy writer. She has written for a range of reputable publications in addition to Sydney Criminal Lawyers.

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