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Section 10 Drug Misuse and Trafficking Act 1985
Drug Possession

Drug possession is one of the most common offences dealt with in the Local Courts and involves having an illegal drug under your custody and control.

It is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW).

There is no need for the prosecution to prove that you owned the drugs – you can still be charged with this offence where you were simply holding them for a friend.

The prosecution simply needs to prove that the drugs were in your possession, and you knew, or should have known that they were in your possession.

For instance, you may be charged with drug possession if drugs are found in your home, car or on your person.

However, no matter how serious the allegations are, our specialist drug lawyers can help you fight the charges by advising you of any possible defences that you may raise.

These include the defence of ‘exclusive possession’ – where police are unable to prove that the drugs belonged to you, or the defence of honest and reasonable mistake – where you were honestly unaware that the drugs were in your possession, such as when they were planted on you.

Alternatively, we can fight to have the charges thrown out where police conducted an illegal search.

Drug possession is a summary offence, which means that it will be dealt with before a magistrate in the Local Court.

The maximum penalty for this offence under the law is 2 years imprisonment and/or a fine of $2,200, however this will only apply in the most serious cases.

The Legislation

10 Possession of prohibited drugs

(1) A person who has a prohibited drug in his or her possession is guilty of an offence.

(2) Nothing in this section renders unlawful the possession of a prohibited drug by:
(a) a person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act 1966
(b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis or study,
(b1) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA,
(c) a person for or to whom the prohibited drug has been lawfully prescribed or supplied, or
(d) a person who:
(i) has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and
(ii) has the prohibited drug in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply.

Why Choose Sydney Criminal Lawyers®?

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.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  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

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  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.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  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.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    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.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

    We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.


Recent Cases

Our client is a 42 year old living in the inner eastern suburbs of Sydney.

Police were patrolling the central metropolitan area by vehicle, when they say they observed him look at them and abruptly turn his car and drive away.

They pulled over his car and asked if he would consent to a search. Our client provided that consent.

During the search, police discovered 6 different prohibited drugs in his glovebox.

Our client immediately made admissions to owning the drugs, and said they were for his personal use.

He was charged as a result with 6 counts of possessing a prohibited drug, an offence which carries a maximum penalty of two years in prison.

He attended a conference at our office during which he informed us that he has a history of mental health issues, and that the drugs were a form of ‘self-medication’ as traditional drugs he was prescribed had severe side-effects on him.

He also advised that he holds a security licence and expressed concerns that a plea of guilty would result in its cancellation.

We advised our client to attend the MERIT drug program and we briefed a psychologist who provided us with a report corroborating his history of mental health issues and instructions regarding self-medication.

Based on that information, we made a ‘section 32 mental health application’ before the court seeking an order that the charges against our client be dismissed without a conviction or a finding of guilt provided he complies with a treatment plan for a period of six months. The plan required him to seek his treating psychologist each week, undertake cognitive behavioural therapy in order to address underlying issues and comply with the psychologist’s directions.

While the magistrate was initially reluctant to grant the order due to the number of offences, she was ultimately persuaded due to the verbal submissions supporting the application.

This means that not only does our client avoid a criminal conviction, he also avoids a finding of guilt.

Our client is a 21 year old man living in north western Sydney.

He attended a night club in the Sydney CBD with friends on a Friday night and consumed both alcohol and cocaine.

Security asked him to leave the club due to his level of intoxication and he allegedly refused and pushed a security guard.

He allegedly continued a tirade of abuse outside the club when nearby police attended and intervened.

Our client allegedly began lashing out verbally and physically, and allegedly spat at police and security guards on multiple occasions.

He was arrested and a small amount of cocaine was found on him.

He was taken to the police station and charged with two counts of assault (against the security guards), three counts of assaulting police for allegedly striking and spitting at them, resisting arrest, possessing a prohibited drug, remaining at a licensed premises when excluded.

Our client was said to be uncontrollable and attempted to self-harm while in custody.

He was eventually released and saw us for advice.

Due to his actions, we referred him for a psychiatric assessment which found he was suffering from severe depression and anxiety. We obtained a report setting out his background, diagnosis and a treatment plan to assess his underlying issues.

We listed his case for an application under section 32 of the Mental Health (Forensic Provisions) Act 1990 for his charges to be dismissed on the basis that he has a mental condition and the matter is best dealt with through treatment by a mental health professional than under the general law.

The prosecution opposed the application essentially on the basis that the charges were too serious and numerous and that the diagnosed conditions could not be seen as an excuse for such conduct.

However, we made extensive submissions regarding the objectives of the legislation, the relevant case-law and how it is appropriate for the court to deal with our client by way of a treatment plan rather than convicting and sentencing him under the general law.

After answering a number of questions posed by the magistrate, he was ultimately convinced that it was indeed appropriate to deal with our client under section 32.

He therefore granted the order, which means our client does not have a criminal conviction or even a finding of guilt against him, but remains conviction-free provided he regularly sees his psychologist for 6 months for cognitive behavioural therapy, takes prescribed medication and sees his psychiatrist after 3 months.

This means there is a plan in place for our client to get the treatment he needs to avoid a reoccurrence of the conduct and to move forward with his life.

Our client is a 27 year old man who is on a student visa.

Police were conducting a drug dog operation within the Kings Cross Entertainment precinct.

They were walking along the footpath when they observed our client see them and immediately cross the road.

Police followed our client and say they observed him cross back, in what they viewed to be an active attempt to avoid the sniffer dog.

They approached our client and activated their Body Worn Video camera. They asked if our client would consent to a search, and he did.

During the search, police located 2 resealable plastic bags containing a total of 18 capsules of MDMA (‘ecstacy’).

They arrested our client and conveyed him to the police station, where our client participated in an interview and admitted owning the tablets.

The law in NSW is that where the weight of a substance containing MDMA is above 0.75 grams, police are able to charge the person with ‘drug supply’ as it is deemed the drugs were in the person’s possession for the purpose of supply.

In that case, police do not need to prove that the person intended to supply the drug; rather the onus of proof shifts to the defendant to prove on the balance of probabilities that he or she possessed the drugs for something other than supply, most commonly for personal use only.

The weight of the drugs in our client’s possession was 4.27 grams, well in excess of the ‘deemed’ quantity.

He was subsequently charged with supplying a prohibited drug.

As the weight was more than 1.25 grams, the supply charge became ‘strictly indictable’ which means it must be finalised in the District Court rather than the Local Court.

This also meant the matter was taken over by the Office of the Director of Public Prosecutions (DPP).

We wrote detailed ‘representations’ to the DPP regarding the fact the drugs were in our client’s possession for personal use only, requesting the downgrading of the supply charge to drug possession – which is far less serious and would allow the case to remain in the Local Court.

After intense negotiations, the DPP ultimately agreed to our request.

Our client then pleaded guilty to drug possession-only in the Local Court.

In preparation for our client’s sentencing proceedings, we assisted him to prepare a Letter of Apology, Character References and also guided him to attend the SMART Recovery Program.

As he is an Italian national, we obtained his Italian criminal record (which was clean) and had it translated.

We made detailed submissions in regarding his remorse, steps to taking control of his substance use and the impact of a conviction on his desire to work in the future as a professional.

We also compiled relevant case-law which makes it clear a magistrate can impose a ‘non-conviction’ despite the number of pills.

The Crown opposed our request and made submissions for a criminal conviction and significant penalty.

We ultimately persuaded the Magistrate not to impose a criminal record on our client, and released him on a two-year good behaviour bond without conviction.

Our client was ecstatic and looks forward to pursuing his career.

Our client is a 24 year old physical education student.

Police say they observed him entering a ‘known drug premises’ and exiting a short time later with a package.

They followed his car and pulled him over a short time later. They asked whether he had any drugs in the car, to which he replied ‘some steroids’.

They then search his car, located the package on the passenger seat, and within it found a total of 800 Dianabol (steroid) tablets, a 10 ml vial of Sustanox X250 (a steroid) and approximately 1 gram of cannabis.

Our client was then charged with three counts of drug possession in respect of the substances. Given the state of the evidence and our client's admissions, and after some alterations were agreed by the prosecution to the 'full facts', pleas of guilty were entered to the charges.

Our client instructed that he was "obsessed" with his body image. Accordingly, we arranged for him to see a psychologist, who diagnosed him with  ‘body dysmorphia’.

He continued seeing the psychologist in the lead-up to the sentencing hearing, and we obtained a report about his underlying issues and the steps he taken towards address them.

We also assisting him to prepare a letter to the court which outlined his acceptance of responsibility, his remorse and his efforts towards rehabilitation. We also helped him in obtaining character references in the proper form.

Despite the quantity of drugs and number of charges, we ultimately persuaded the magistrate to place him on good behaviour bonds for a period of two-years without recording a criminal conviction against his name.

Our previously-anxious client is now confident that his studies will lead to employment as a teacher or instructor.

Our client is a 25 year old man who works in the marketing industry.

Police were conducting patrols outside a popular music festival with the assistance of their drug detection dogs, when a dog indicated the presence of drugs in our client’s possession.

When asked by police as to whether he had any drugs on him, our client immediately made full admissions and produced a small resealable bag containing 7 MDMA (‘ecstacy’) pills.

Under the law, any amount of ‘ecstasy’ above 0.75g is considered to be in a person’s possession for the purpose of supply. Our client was not charged with supply on this occasion, but with drug possession only.

Our client instructed us that he intended to plead guilty to that charge, which was the appropriate plea given his immediate admissions and the finding of drugs.

We assisting him in preparing his letter of apology to the court, in seeing a counsellor and obtaining a letter of attendance from her, and in gathering character references with the relevant content.

We made extensive submissions in court in relation to his acceptance of responsibility, steps towards addressing underlying issues, remorse and the likely impact of a criminal conviction on his future plans.

With some hesitation, Her Honour was ultimately persuaded not to record a conviction against our client’s name, but rather to place him on an 18-month good behaviour bond without a criminal record.

Our client was overjoyed by the outcome and looks forward to continuing to advance in his career.

Our client is a foreign national on a working holiday visa.

A few months into her stay in Australia, she decided to attend a music festival with a group of friends.

On the day of the festival, she was pressured to carry 14 MDMA (‘ecstacy’) tablets into the festival grounds.

The male members of the group, including her boyfriend at the time, felt that as a female she would come under the least suspicion from security and police, who were checking for illegal drugs at the festival entry.

A sniffer dog gave a positive indication and our client quickly admitted to possessing the tablets.

She was then arrested and charged with ‘drug supply’ due to the number of tablets found. In that regard, the law provides that a person found with more than the ‘trafficable quantity’ of drugs can be charged with supply. This is known as ‘deemed supply’. The trafficable quantity of MDMA is just 0.75 grams.

If a person is charged with deemed supply, the onus of proof then shifts to them to prove ‘on the balance of probabilities’ that they were in possession of the drugs for the purpose of something other than supply.

The law also provides that a person who holds drugs momentarily for the owner with a view to returning it is not guilty of supply.

An issue for our client was that there were a number of people to whom the drugs were to be distributed upon entry to the festival, and she made admissions to police that she intended to supply the tablets to these people.

Despite the issues, our defence team wrote a detailed letter – known as ‘representations’ formally requesting withdrawal of the supply charge provided that our client pleaded guilty to drug possession.

She pleaded guilty to that lesser charge and we assisted her in gathering a range of subjective materials, including documents in relation to the impact of a criminal conviction.

After extensive verbal submissions in the local court, and despite submissions against a ‘non conviction’ by the prosecution, Her Honour was persuaded to impose a two-year good behaviour bond without a criminal conviction.

This is an excellent result given the number of tablets involved.

Our client is a 38-year-old teacher.

Police in plain clothes observed him stand up and exit a bar as they were entering the premises with a drug-detection dog.

Police decided to approach him, at which time our client immediately produced a small bag of cocaine and handed it over to them.

Police then arrested and issued him with a court attendance notice.

It wasn’t the first time our client was in trouble for drug possession.

He had two prior drug possession offences, and was placed each time on a ‘section 10’ good behaviour bond, without a criminal conviction.

He had been warned by the magistrate on the previous occasion that such leniency would not be extended to him on a third occasion.

Despite that warning, our lawyers ensured he was placed in the best possible position in court. We assisted him to prepare character references, a letter of apology and evidence he would likely lose the job he recently acquired if convicted.

Our client also made enquiries about participating in a drug rehabilitation program, and we produced evidence of his efforts to the court.

We then made extensive submissions before the court, and with some hesitation the magistrate was ultimately persuaded to deal with our client by placing him on a good behaviour bond without conviction once again.

Our client is a 24 year old student who was found to be in possession of 15 ecstasy tablets.

During the police interview, he admitted intending to supply the tablets to his friends once they were all together inside the hotel they were intending to meet.

Police charged our client with ‘deemed supply,’ alleging that he was in possession for the purpose of supply, as the current definition of supply extends to an intention to supply. The offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.

Despite our client’s admissions, we successfully persuaded police to withdraw the supply charge on condition he pleads guilty to the lesser charge of drug possession; which carries a maximum penalty of two years.

Our client entered a plea of guilty to that charge and we assisted him to prepare a range of subjective materials, including a letter of apology, character references and a letter from a psychologist.

Due to the number of tablets, the Local Court magistrate imposed an 18 month good behaviour bond on our client under ‘section 9’ of the Crimes (Sentencing Procedure) Act – which comes with a criminal record.

We appealed the severity of the penalty to the District Court, where we ultimately persuaded the judge to deal with our client ‘without conviction’. He is now free to pursue his future career in accounting without the obstacle of a criminal record.

Our 23 year old client has been granted conditional bail in Central Local Court after being charged with 'supplying a large commercial quantity of prohibited drug' and 'knowingly participate in criminal group'.

Police conducted a controlled operation into the alleged production and supply of methylamphetamine originating out of a clandestine laboratory in Ryde, NSW.

Police used surveillance devices and physical monitoring to track the movement of substances from that location to other parts of Sydney.

Our client was arrested together with four other young men who were allegedly in possession of 2.4 kilograms of methylamphetamine.

It is additionally alleged that our client is captured on surveillance footage handling the packages within which the drugs were found.

All five defendants then came before the Presiding Magistrate in Central Local Court.

They all faced an uphill battle when it came to bail because 'large commercial drug supply' is one of the offences captured by the new "show cause" provisions of the Bail Act - which means that it is very difficult to obtain bail in such cases.

However, our senior lawyers made extensive verbal submissions which ultimately convinced the Magistrate to grant bail to our client.

All of the other four other defendants were refused bail.

It is just another example of how superior legal representation can make all the difference when it comes to your liberty.

In May 2013, our client pleaded guilty to Supplying a Commercial Quantity of Prohibited Drug and 3 counts of Possess Prohibited Drug.

He was given a two-year 'Suspended Sentence' and 3 x three-year 'Section 9 Good Behaviour Bonds' for those charges by the Presiding Judge in Downing Centre District Court. This was an excellent result given the seriousness of the charges.

However, in November 2014, he was found in possession of MDMA ('ecstacy') tablets and a quantity of cannabis, and charged with two counts of drug possession. Those charges caused him to breach his 'Suspended Sentence' and his 'Good Behaviour Bonds'.

In the lead-up to his court proceedings, our legal team gathered material supporting the assertion that our client had taken significant steps towards rehabilitation, but had found it difficult at times and relapsed.

In the result, the Presiding Judge was persuaded that there were good reasons to excuse the breach of Suspended Sentence. The breach was therefore excused and our client was given a fresh two-year section 9 good behaviour bond.

He therefore avoids prison and can continue in his efforts towards rehabilitation.

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