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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 Sydney Criminal Lawyers®?

Though it is a relatively minor offence, a drug possession charge has the potential to result in a conviction on your criminal record.

But with the help of our drug law specialists you can effectively fight the charges and move on with your life without the burden of a criminal record hanging over your head.

As Sydney’s only drug law specialists, our lawyers possess the expert insight and knowledge to give you the most effective defence against the charges.

Our lawyers will take the time to carefully examine all the facts and evidence and will push to have the charges dropped before a defended hearing.

Where the prosecution refuses to drop the charges, our drug law experts will identify any possible defences that can be raised to secure the best possible outcome.

Should you wish to plead guilty to the charges, our lawyers will fight hard to obtain a ‘section 10 dismissal or conditional release order,’ which is where you are found guilty of the offence but no conviction is recorded on your criminal record.

We take pride in our proven track record of achieving non conviction orders, which are far superior to that of any other law firm in Sydney.

Our lawyers frequently represent clients charged with drug possession at music festivals, and consistently secure non conviction order in these kinds of cases.

We also offer competitive fixed fee rates for drug possession matters, so you know upfront exactly how much your matter is going to cost you.

Call us today on (02) 9261 8881 and book your FREE first conference to discuss your matter with Sydney’s leading drug lawyers.


Recent Cases

Section 32 Application Successful: Client Avoids Criminal Record for 6 Drug Possession Charges

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.

All Charges including 2 Assault Charges, 3 Assault Police Charges and Drug Possession Dismissed

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.

No Criminal Record for 18 ‘Ecstacy’ Tablets

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.

No Conviction for 800 Steroid Tablets

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.

No Criminal Record for Possessing 7 ‘Ecstacy’ Tablets

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.
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