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Criminal Lawyers in Sydney for Drug Offences

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Expert Lawyers for Drug Offences

Sydney Criminal Lawyers® comprises a team of experienced drug defence lawyers with an unparalleled track record of success in defending serious and complex drug charges, as well as helping clients to avoid harsh consequences such as criminal convictions if they wish to plead guilty to less-serious drug offences.

Drug Cases are Our Speciality

Drug cases are our largest area of practice, and our published case results are a testament to the fact that our dedicated team of experienced, specialist criminal defence lawyers is a cut above the rest when it comes to fighting and winning serious drug cases, and achieving non-conviction orders such as ‘section 10 dismissals‘ and ‘conditional release orders without conviction‘ when our clients wish to plead guilty.

Long and Proven Track Record of Success

Our experienced team has developed techniques over decades which consistently achieve exceptional results, and some of our notable victories include winning Australia’s largest ever heroin importation trial – where all three of our clients were found not guilty, while the remaining three co-accused, represented by other criminal law firms, were found guilty – achieving bail in circumstances that appeared insurmountable, such as when our clients were allegedly caught importing 300 kilograms of drugs, achieving bail in several other commercial drug supply cases where the co-accused, represented by other law firms, were refused bail, winning dozens of commercial drug importation and supply cases including having charges withdrawn early in the proceedings (see our success stories).

A Cut Above the Rest

We often win cases after clients have seen other criminal lawyers who have advised them to plead guilty, through our in-depth knowledge of the applicable laws and procedures, meticulous preparation, proactively building defence cases (rather than simply adjourning cases to await prosecution materials), and implementation of effective defence strategies.

Find a Drug Lawyer Near Me

If you’re looking for a specialist drug defence law firm with a multi award winning team of vastly experienced lawyers who consistently deliver exceptional results, we have you covered.

Sydney Criminal Lawyers has office locations across the Sydney metropolitan area and beyond, including in the Sydney CBD (our head offices), Parramatta, Sutherland, Liverpool, Bankstown, Penrith, Chatswood,  Wollongong, Newcastle and Cessnock.

You can use our find a lawyer near me search to locate the office nearest to you.

Our experienced drug defence lawyers represent clients in courts across New South Wales, as well as beyond state borders for serious and complex cases best handled by the lawyers of the highest calibre from Australia’s leading criminal defence law firm.

How Can an Experienced Drug Lawyer Assist?

If you are going to court for a drug charge, an experienced drug lawyer can assist by:

  • Evaluating the prosecution case,
  • Obtaining your account of the events,
  • Explaining the law and how it applies to your situation,
  • Explaining your options and advising you on the best way forward, and
  • Formulating and implementing an effective defence strategy.

For more information about how a specialist drug lawyer can help you achieve the optimal outcome in your case, read our drug lawyers page here.

Call Us Now

So whether you are going to court over a few pills at a party or music event, or charged with commercial drug importation, large commercial drug supply, cultivation, manufacture or production, call us 24/7 on (02) 9261 8881 to get the best drug defence team behind you.

Types of Drug Offences

Here are some of the most frequently prosecuted drug offences in New South Wales:

Drug Cultivation

Cultivating prohibited plants is also known as ‘drug cultivation’ and these offences are contained in section 23 and 23A of the Drug Misuse and Trafficking Act 1985 (NSW).

Prohibited plants include cannabis (or marijuana), erythroxylon (a source of cocaine) and opium poppies, among others.

‘Cultivation’ includes sowing or scattering seeds, planting, growing, tending, nurturing and harvesting.

Offence types range from the least serious, which is simple cultivation, through to cultivating a prohibited plant by enhanced indoor means for a commercial purpose in the presence of children.

To establish any of these offences, the prosecution must prove a number of ‘essential elements’ (ingredients) beyond a reasonable doubt, which include at least the following:

  • You cultivated a plant or knowingly took part in its cultivation, and
  • The plant was a prohibited plant.

In addition to this, the prosecution must disprove to the same high standard any available legal defence, which may include duress or necessity.

The maximum penalties that apply depend on a range of factors, including the specific offence charged, the number (eg cannabis) or weight (eg Erythroxylon) of the plants and whether the case is finalised in the Local Court (where the maximum penalty is 2 years in prison for any single offence) or a higher court, such as the District or Supreme Court.

Maximum penalties for drug cultivation offences range from two to 24 years in prison.

The maximums are reserved for the most serious offending conduct, and the court can impose a range of alternative penalties, including ‘non conviction orders’, fines and good behaviour bonds.

More information:

Drug Importation or Exportation

Drug importation and exportation offences are contained in sections 307.1 (commercial quantity), 307.2 (marketable quantity) and 307.3 (any quantity) of the Criminal Code Act 1995 (Cth), which applies across Australia.

To establish any of these offences, the prosecution must prove beyond a reasonable doubt that:

  • You imported or exported a substance,
  • You did so intentionally,
  • The substance was a border controlled drug or plant, and 
  • You knew or were reckless as to whether the substance was a border controlled drug or plant.

Border controlled drugs include cocaine, amphetamines such as methamphetamine and MDMA (ecstasy), opioids such as opium, heroin and fentanyl, and LSD (acid) and border controlled plants include cannabis, erythroxylon (a source of cocaine) and opium poppies.

You were ‘reckless’ if you were aware it was likely that the substance was a border controlled drug or plant and it was unjustifiable in the circumstances known to you to engage in the conduct, but you went ahead with your actions regardless.

The prosecution is additionally required to disprove beyond a reasonable doubt any legal defence that may apply, such as duress or necessity.

The maximum penalties for drug importation or exportation are: any quantity – 10 years in prison, marketable quantity – 25 years in prison, commercial quantity – life in prison, 

However, it is important to be aware the maximums are reserved for the most serious offending conduct and there are a range of alternative penalties that courts can apply, including conditional release orders, community correction orders, recognizance release orders and intensive correction orders.

More information:

Drug Manufacture or Production

Drug manufacture and production offences are contained in section 24 of the Drug Misuse and Trafficking Act 1985 (the ‘NSW Drugs Act’) which applies in New South Wales and section 305 of the Criminal Code Act 1995 (the ‘Criminal Code’), which applies across Australia.

To establish a drug manufacture or production offence under the NSW Drugs Act, the prosecution must prove at least the following essential elements beyond a reasonable doubt:

  • You manufactured or produced, or knowingly took part in the manufacture or production of a substance, and
  • The substance was a prohibited drug.

Prohibited drugs include cocaine, amphetamines such as methamphetamine and MDMA (ecstasy), LSD (acid), and opioids such as opium, heroin and fentanyl.

‘Manufacture’ refers to the process of extracting or refining a substance.

‘Production’ refers to the process of actually making the substance.

Depending on the specific charge, the prosecution may also need to prove the quantity of the drug (marketable, commercial or large commercial quantity), and/or that the offence occurred in the presence of a child.

In addition to having to prove these elements, the prosecution must also disprove any legal defences raised by the evidence, such as duress and necessity. 

Further legal defences are having a valid licence, permit or authorisation, and, for offences involving the presence of children, that the exposure did not endanger the child’s health or safety.

The maximum penalties depend on a range of factors, including the specific offence charged, the quantity of the drugs, if a child was exposed to the process and whether the case is finalised in the Local Court (where the maximum penalty is 2 years in prison for any single offence) or a higher court, such as the District or Supreme Court.

The maximum penalties for drug manufacture or production range from 15 years to life in prison.

However, it is important to be aware the maximums are reserved for the most serious types of offending and where the case is finalised in a higher court. There are a range of alternative penalties that courts can apply in these cases, including ‘non conviction orders’, fines, good behaviour bonds such as community correction and intensive correction orders, and shorter prison terms.

Charges brought under section 305 of the Criminal Code relate to the manufacturing of controlled drugs, which include substances covered by the NSW Drugs Act.

These offences require the prosecution to additionally prove that the drugs were manufactured for a commercial purpose.

Various legal defences also apply to these charges, and the maximum penalties range from 10 years (any quantity) to life in prison (commercial quantity) which, again, are reserved for the most serious offending. 

More information:

Drug Possession

Drug possession is the most frequently- prosecuted drug offence in New South Wales.

It is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) which requires the prosecution to prove beyond a reasonable doubt that:

  • You possessed a substance,
  • The substance was a prohibited drug or plant, and
  • You knew a prohibited drug or plant was in your possession.

The term ‘possession’ has been defined as encompassing ‘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’.

In addition to having to prove every essential element, the prosecution must also disprove beyond a reasonable doubt any legal defence raised on the evidence, including duress and necessity.

The prosecution’s case is also liable to fail if procedural requirements are not followed, including where drugs were found during a search which was not based on a ‘reasonable suspicion’ they were in your possession at the time; also known as an ‘illegal search’. 

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

However, it is important to be aware the maximum is reserved for the most serious offending, and a range of factors will be taken into account when determining the penalty for those who plead guilty to, or are found guilty of drug possession, including:

  • The amount and type of drugs, 
  • The circumstances surrounding your conduct, 
  • Whether you entered a plea of guilty or not guilty,
  • Your criminal history (if any), 
  • The impact a criminal conviction would have,
  • Your demonstrated remorse,
  • Your prospects of rehabilitation, and
  • Your likelihood of reoffending.

Your prospects of a lenient outcome will be maximised with persuasive submissions in court supported by your letter of apology, character references and participation in a treatment program such as Smart Recovery or MERIT.

The actual penalties imposed by the courts for drug possession in New South Wales are broken down as follows: 

  • Fine (with criminal conviction) 58.6%, 
  • Conditional release order with no criminal conviction 18%,
  • Section 10A order (conviction with no further penalty) 6.6%, 
  • Community correction order (bond with conviction) 6.5%,
  • Section 10(1)(a) dismissal (no criminal conviction) 5.7%, 
  • Conditional release order with criminal conviction 3%,
  • Prison 1%,
  • Intensive correction order (with criminal conviction) 0.6%,

An experienced drug lawyer will be able to identify problems with the prosecution case and legal defences that may apply, push for withdrawal of the charge/s on that basis or fight for the case to be dismissed in court if the case nevertheless proceeds.

If you wish to plead guilty, a specialist drug lawyer will work to amend the agreed ‘facts’ of the case to make them less serious, guide you on the preparation of supporting materials and programs you may wish to undertake, and thoroughly prepare and persuasively present your case in court with a view to achieving the best possible outcome.

More information:

Drug Premises

Drug premises offences in New South Wales are contained in sections 36X (entering or being on drug premises), 36Y (allowing use of premises as drug premises) and 36Z (organizing drug premises) of the Drug Misuse and Trafficking Act 1985.

Each of these offences require the prosecution to prove several ‘essential elements’ (or ingredients) beyond a reasonable doubt, including but not limited to:

  • That the premises was in fact a drug premises, and 
  • You knew the premises was a drug premises.

The prosecution must also disprove beyond a reasonable doubt any general defences – which are legal defences that apply to all criminal offences – that may be raised on the evidence, such as duress, necessity, automatism and mental illness.

Every drug premises offence also has at least one statutory defence – which is a legal defence that applies to the specific offence – that if established on the balance of probabilities must leads to an acquittal.

A ‘drug premises’ is defined by the Act as one which is used for:

  • The unlawful supply or manufacture of prohibited drugs, or
  • The unlawful commercial cultivation of prohibited plants by enhanced indoor means.

‘Commercial cultivation’ is defined as:

  • Cultivation of at least the commercial quantity of prohibited plants, or
  • Cultivation of at least the small quantity but less than the commercial quantity of prohibited plants where they or their products are intended for sale.

A premises may be considered a drug premises even if no prohibited drugs or plants are located there at the time of a search.

Factors that may suggest a premises is a drug premises include evidence:

  • That police were prevented, obstructed or delayed from entering,
  • That the internal or external construction was fitted with bolts, bars and/or chains, 
  • Of a person/s acting as a lookout/s,
  • Of a person/s in possession of an item/s indicating drug use, supply or manufacture,
  • Of a document/s or other record/s suggesting unlawful drug supply or manufacture,
  • Of large sums of money that are not accounted for, and/or
  • Of a person/s apparently affected by a prohibited drug/s.

Specific drug premises offences under the Act are:

  • Entering, leaving or remaining on drug premises – 36X(1) – maximum penalty: 12 months in prison and/or 50 penalty units for first offence or 5 years and/or 500 penalty units for second or subsequent offence.
  • Owner or occupier knowingly allowing premises to be used as drug premises – section 36Y(1) – maximum: 12 months and/or 50 penalty units for first offence or 5 years and/or 500 penalty units for second or subsequent offence.
  • Owner or occupier knowingly allowing premises to be used as drug premises knowing a child has access and the child is exposed – 36Y(2) – maximum: 14 months and/or 60 penalty units for first offence or 6 years and/or 600 penalty units for second or subsequent offence.
  • Organising, conducting or assisting in organising or conducting a drug premises – 36Z(1) – maximum: 12 months and/or 50 penalty units for first offence or 5 years and/or 500 penalty units for second or subsequent offence.
  • Organising, conducting or assisting in organising or conducting a drug premises knowing a child has access and the child is exposed – 36Z(2) – maximum: 14 months and/or 60 penalty units for first offence or 6 years and/or 600 penalty units for second or subsequent offence

One penalty unit is equivalent to $110. A ‘child’ is a person under the age of 16 years.

It is important to be aware the maximum penalties are reserved for the most serious types of offending.

There are a range of alternative penalties that courts can impose where a person pleads guilty to, or is found guilty of, a drug premises offence, including ‘non conviction orders’ (no criminal record), fines and various good behaviour bond-type orders.

More information:

Drug Supply

Supplying a prohibited drug is also known as ‘drug supply’ and is an offence under section 25 of the Drug Misuse and Trafficking Act 1985.

Prohibited drugs include cocaine, amphetamines such as methamphetamine and MDMA (ecstasy), opioids such as opium, heroin and fentanyl, LSD (acid), psiliocybin (magic mushrooms) and cannabis.

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

  1. You supplied, or knowingly took part in the supply of, a substance,
  2. The substance was a prohibited drug, and
  3. You knew or believed, or were aware that there was a significant or real chance, that the substance was a prohibited drug.

To ‘supply’ includes to sell or distribute, or agree to do so, to offer for supply, to keep or have in your possession for supply, to send, forward, deliver or receive for supply, and to authorise, direct, cause, suffer, permit or attempt any of those acts.

To ‘take part in’ means to:

  • Take, or participate in, or cause any step to be taken, in the process of the supply,
  • Provide or arrange finance for any such step, or
  • Provide the premises in which any such step is taken, or suffering or permitting any such step to be taken in premises where you are the owner, lessee or occupier, or in the management of.

The general legal defences to drug supply charges include duress, necessity, automatism, mental illness and self-defence.

If evidence of such a defence is raised, the onus then shifts to the prosecution to prove beyond reasonable doubt that the offence does not apply in your case.

If the prosecution is unable to do this, you must be found not guilty.

Additional defences may apply where:

  • You were temporarily holding the drugs for the owner – known as the ‘Carey defence’,
  • Where the prosecution is unable to exclude the possibility that the drugs were possessed by another person – known as the ‘Filipetti defence’, and/or
  • Drugs were found as a result of illegal police search, in which case evidence of the drugs may be thrown out of court.

The maximum penalty for a drug supply offence depends on the type of drug, the quantity of the drug and whether the case is finalised in the Local Court or in a higher court such as the District or Supreme Court.

The maximum penalties for drug supply range from 2 years in prison and/or a $5,500 fine for less than a ‘small quantity’ where the case is finalised in the Local Court, up to life in prison and/or a $550,000 fine for a large commercial quantity, which is an offence category that must be finalised in a higher court.

However, it is important to be aware that the maximums are reserved for the most serious offending conduct, and courts can impose a range of alternative penalties including ‘non conviction orders’ (no criminal record), fines and various good behaviour bond-type orders such as community correction and intensive correction orders.

More information:

Drug Supply (deemed)

Deemed drug supply is where you are charged with supplying a prohibited drug on the basis of the quantity of drugs in your possession, rather than any evidence that you actually supplied or planned to supply it.

In that regard, section 29 of the Drug Misuse and Trafficking Act 1985 states that where a person is found in possession of at least the traffickable quantity of a prohibited drug, it is ‘deemed’ (taken or considered) that he or she is in possession of substance for the purpose of supply and can therefore be charged with drug supply under section 25 of the Act.

However, the section also makes clear that a person must be found not guilty of drug supply if he or she satisfies the court ‘on the balance of probabilities’ (that it is more likely than not) the possession was other than for the purpose of supply.

The most effective ways of doing this are to argue that:

  • the drugs were not in your ‘exclusive possession’ at all (known as the ‘Filipetti defence’) or you had a legal defence for engaging in your conduct, such as duress where you were forced under a serious threat, in which case the charge will be dismissed altogether, or
  • you were temporarily holding the drugs for the owner (known as the ‘Carey defence’), in which the charge will be reduced to drug possession, which is less serious, or
  • the drugs were in your possession for personal use only, in which case the charge will be downgraded to drug possession. 

This can be established where you have a drug habit and or there is an absence of evidence that suggests actual supply, such as a lack of large sums of cash, drug scales, multiple mobile phones and the quantity is not so great that it is inconceivable it could be for your own use.

In any of these situations, a formal letter known as ‘representations’ can be sent to the prosecution requesting the withdrawal or downgrading of the charge, which is followed up with a case conference pushing for that outcome.

The maximum penalties for deemed drug supply are the same as those that apply to actual drug supply.

More information:

Drug Supply on an Ongoing Basis

Drug supply on an ongoing basis is also known as ‘ongoing supply’, and is an offence under section 25A of the Drug Misuse and Trafficking Act 1985 which involves supplying a prohibited drug other than cannabis on three or more occasions over a 30-day period.

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

  1. You supplied a prohibited drug other than cannabis,
  2. You did so on 3 or more occasions,
  3. Those occasions fell within a 30 day period, and
  4. You did so for financial or material reward.

In addition to having to prove these ‘essential elements’, the prosecution must also disprove to the same high standard any legal defences that may be raised, include duress and necessity.

You are entitled to an acquittal (a not guilty verdict) if the prosecution is unable to do this.

The same type of drug does not need to be supplied on each occasion; so, for example, one supply could be of MDMA (ecstasy), another of cocaine and a third of ketamine.

However, the prosecution must convince the court that the supplies related to the same 3 or more occasions.

A person cannot be found guilty of both ongoing supply and another drug offence such as drug supply over the same conduct.

The maximum penalty for the offence is 20 years in prison if the case is referred to a higher court such as the District Court, or 2 years if it is finalised in the Local Court.

However, the maximum for ongoing supply is reserved for the most serious offending conduct, and the court can impose any alternative penalty including a ‘non conviction order’ (such as a section 10 dismissal or conditional release order without conviction), a conviction with no further penalty, a fine, conditional release order with conviction, community correction order or intensive correction order.

More information:

Possession of Border Controlled Drug or Plant Reasonably Suspected of Being Unlawfully Imported

Possession of a border controlled drug or plant reasonably suspected of being unlawfully imported is an offence under section 307.8 (commercial quantity), 307.9 (marketable quantity) and 307.10 (any quantity) of the Criminal Code Act 1995, which applies across Australia.

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

  • You possessed a substance,
  • The substance was a border controlled drug or plant,
  • The substance was reasonably suspected of having been unlawfully imported, and
  • You knew or were reckless as to whether the substance was a border controlled drug or plant.

The prosecution will additionally need to prove the quantity of the substance if a marketable or commercial quantity is alleged. 

Border controlled drugs include cocaine, amphetamines such as methamphetamine and MDMA (ecstasy), opioids such as opium, heroin and fentanyl, and LSD (acid) and border controlled plants include cannabis, erythroxylon (a source of cocaine) and opium poppies.

You were reckless as to whether the substance was a border controlled drug or plant if you were aware there was a substantial risk the substance was such and it was unjustifiable to take that risk considering all of the circumstances known to you, but you went ahead with your actions regardless.

You are not guilty of the offence if you establish it was more likely than not that the substance was not unlawfully imported.

Other legal defences to the charge include duress, sudden or extraordinary emergency, mental illness and self defence.

The maximum penalties for the offence are: any quantity – 2 years in prison, marketable quantity – 25 years in prison, commercial quantity – life in prison.

The maximums are reserved for the most serious offending conduct, and the court can impose a range of alternative penalties, including ‘non conviction orders’, fines and good behaviour bonds.

More information:

Possession of Unlawfully Imported Border Controlled Drug or Plant

Possessing an unlawfully imported border controlled drug or plant is an offence under section 307.5 (commercial quantity), 307.6 (marketable quantity) and 307.7 (any quantity) of the Criminal Code Act 1995, which applies across Australia.

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

  • You possessed a substance,
  • The substance was a border controlled drug or plant,
  • The substance was unlawfully imported, and
  • You knew or were reckless as to whether the substance was a border controlled drug or plant.

The prosecution will additionally need to prove the quantity of the substance if a marketable or commercial quantity is alleged. 

Border controlled drugs include cocaine, amphetamines such as methamphetamine and MDMA (ecstasy), opioids such as opium, heroin and fentanyl, and LSD (acid) and border controlled plants include cannabis, erythroxylon (a source of cocaine) and opium poppies.

You were reckless as to whether the substance was a border controlled drug or plant if you were aware there was a substantial risk the substance was such and it was unjustifiable to take that risk considering all of the circumstances known to you, but you went ahead with your actions regardless.

Legal defences to the charge include duress, sudden or extraordinary emergency, mental illness and self defence.

The maximum penalties for the offence are: any quantity – 2 years in prison, marketable quantity – 25 years in prison, commercial quantity – life in prison.

The maximums are reserved for the most serious offending conduct, and the court can impose a range of alternative penalties, including ‘non conviction orders’, fines and good behaviour bonds.

More information:

Defending Drug Charges

An experienced pro-active specialist drug lawyer with a comprehensive understanding of applicable laws including requirements of proof and available legal defences will maximise the prospects of having the charges withdrawn at an early stage, or dismissed in court if they nevertheless proceed to a defended hearing or jury trial. Read on for more information.

Putting the Prosecution to Proof

It is important to be aware that in order to establish a drug offence, the prosecution is required to prove several ‘essential elements’ (or ingredients) beyond a reasonable doubt.

If it is unable to prove any of these elements, the defendant is entitled to an acquittal (a not guilty verdict).

A specialist drug lawyer with a comprehensive understanding of the law, the processes and procedures that relate to drug charges, the available legal defences and how these apply to the case before them will frequently be able to use their knowledge and experience to have the charges withdrawn well-before the proceedings reach a defended hearing (in the Local Court) or trial (in the District or Supreme Court).

This can be done by preparing and serving a formal document on the prosecution known as ‘representations’ which calls for withdrawal, and following this up with case conferences pressing for the proceedings to be discontinued.

A pro-active approach to defending drug charges will often save the client an enormous amount of time, stress and money.

This can avert the risks inherent in a hearing or trial and allow the client to move forward with his or her life, conviction-free.

If the case nevertheless proceeds to a hearing or trial, a relevantly experienced specialist drug lawyer will thoroughly prepare and effectively execute the defence position pursuant to strategy designed to maximise the prospects of success.

Factual Situations that Undermine Proof

All drug charges require the prosecution to prove several ‘essential elements’ beyond a reasonable doubt.

The courts have prescribed rules over time regarding what amounts to such proof and set-out factual situations whereby proof elements are not satisfied.

And while these rules are not technically ‘legal defences’, they certainly can be used to defeat drug charges.

Lack of Exclusive Possession

One of these rules is that for the element of ‘possession’ to be established for offences such as drug possession, drug supply (including deemed supply) and possessing or attempting to possess an unlawfully imported drug – the prosecution must prove that the defendant had ‘exclusive possession’ of the substance in question.

If there is a reasonable possibility that someone else was in possession (which includes custody or control) of the drug, the defendant must be acquitted; in other words, found not guilty.

This is known as ‘the Filipetti defence’ – after a 1978 case of the same name – and in practical terms means that if drugs are found in a ‘common area’ that is accessed by others – and there is no other evidence to suggest exclusive possession – the defendant must be acquitted.

The rule has been followed in countless cases since it was first set-down, and found to apply where drugs are found in common areas of shared premises including living rooms, fridges, freezers, kitchen and hallway cupboards, work areas accessible by colleagues, cabins and/or boots of vehicles to which more than one person has access, external sheds and garages, and so on.

A comprehensive knowledge of the many cases and situations where Filipetti has been applied is essential when the factual matrix of a client’s case raises potential for its use.

Lack of knowledge

In addition to the requirement to prove exclusive possession, the prosecution must also prove the required degree of knowledge of the drugs being there.

This generally means having to prove he or she actually knew some type of prohibited drugs were there or was ‘reckless’ to that possibility.

In basic terms, a person was reckless if he or she thought something may be happening or happen in the future (depending on the type of drug offence charged) but went ahead regardless.

So, for example, if a requirement of a drug offence is that a person was in possession, custody or control of a prohibited drug, the prosecution must prove the person was at least aware of the presence of the drugs or thought they may have been there.

Evidence the person was not aware of the presence of the drugs at all – for example, where another person may have put them in his or her bag or pocket, or ‘stashed’ them at his or her premises, would need to be disproved by the prosecution beyond a reasonable doubt in order to establish the offence.

By the same reasoning, a person must be found not guilty if he or she knew something was left with him or her, but did not know, and had no reason to believe, what was left was a prohibited drug, and also had no reason to check whether it was or not.

An extensive knowledge of the leading case-law on the issue of these mental requirements in the context of drug offences is a crucial tool in a specialist drug lawyer’s armory, and will often lead to the withdrawal of the charges or their dismissal in court.

Temporarily Holding Drugs for the Owner

For drug offences involving an element of supply – such as drug supply, ongoing drug supply and deemed drug supply – it is necessary for the prosecution to prove beyond reasonable doubt that the defendant supplied prohibited drugs or, in the case of deemed supply, was in possession of at least the traffickable quantity of a prohibited drug.

The courts have found that where a person establishes it was more likely than not that he or she was in possession, custody or control of a drug for a ‘momentary’ or transient’ period of time with the intention of returning it to the owner, the person cannot be found guilty of supply – whether for possessing more than the traffickable quantity or for the act of giving the drug back to the owner; an act which would otherwise constitute a supply under the law.

This is called ‘the Carey defence’ after a 1990 case of the same name, and has the effect of reducing a supply offence down to possession.

It is an important rule because it applies regardless of the quantity of drugs – including very large commercial quantities which can carry a maximum penalty of life in prison, whereas drug possession carries a maximum of 2 years.

Illegal Search

Police and other law enforcement agents are not permitted to search a person, their person property, vehicle or premises for prohibited drugs without a warrant, or a ‘suspicion on reasonable grounds’ that drugs are present at that very time, or if a person gives their informed consent to the search.

If they do so, it amounts to an illegal search and any evidence of drugs located during the search can be rendered inadmissible, which is normally fatal to the prosecution case.

The test for whether a warrantless search is legal is found in the 2001 case of ‘R v Rondo’ and a long line of cases that have followed.

For such a search to be legal, authorities must believe there is ‘more than a possibility’ the drugs are there. Rondo goes on to state, ‘[r]easonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown, and… [t]he source of the officer’s information and its content must be assessed in light of all the circumstances’.

Under the ‘rule in Rondo’, searches based only on a positive reading for a sniffer dog, or solely on a person acting nervously and being in an area known for drug activity, or a person having a history of drug offences are some of the situations have been ruled illegal.

The rule is vey important because where a search is unlawful, a formal request can be made to the prosecution for drug charges to be withdrawn on that basis or, if the case nevertheless proceeds to a defended hearing or jury trial, an application can be made in court for evidence of the drugs to be ruled inadmissible.

More information:

Defences and Exceptions to Specific to Drug Offences

Many drug offences in both the Crimes Act 1900 (NSW) and Criminal Code Act 1995 (Cth) contain specific defences and exceptions, which if established mean a person who is charged must be found not guilty.

An example of this is where a person is charged with entering, leaving or remaining on drugs premises.

A specific defence to this offence is that a person had a lawful purpose for being on the premises, and there is an addition defence that the person did not know, and could not reasonably be expected to know, the premises were being used as drug premises.

Another example is where a person is charged with cultivating a prohibited plant or manufacturing or producing a prohibited drug.

In these cases, having a valid licence, permit or authorisation is a full legal defence. And while this may seem obvious, it can become less straightforward when, for instance, the number of plants, cultivated or the amount and/or type of drugs manufactured or produced is alleged to fall outside the scope of what was allowed.

An additional specific defence where the manufacture or production alleged to have occurred in the presence of a child is that the exposure did not endanger the child’s health or safety.

There are several dozen specific defences and exceptions to drug offences in both New South Wales and Commonwealth laws, and is vital for defence lawyers to be full abreast of these provisions, have an in-depth understanding of how they apply and the know-how to trigger their operation in various factual situations.

General Legal Defences to Drug Charges

General legal defences have which have developed over generations and apply to all criminal offences unless they are expressly excluded by legislation.

Where a person raises evidence of a general legal defence, the prosecution must then prove beyond reasonable doubt that the defence does not apply.

If the prosecution is unable to do so, the person is entitled to a not guilty verdict.

General legal defences to drug charges include:

Duress

This is the most frequently used legal defence to drug charges.

It is where a person or someone close to them is threatened with serious and imminent harm if they refuse to commit the offence.

For the defence to apply, the threatened person must not reasonably be able to avoid the harm (for example, by going to police), he or she must believe the threat would be carried out and the conduct engaged in must not be disproportionate to the feared harm.

More information:

Mental Health

Those who were suffering from a mental health and/or cognitive impairment at the time of the alleged offence which resulted in being unaware of the nature and quality of their act, or in not knowing their act was wrong are not criminally responsible for their conduct.

This is colloquially known as the ‘mental illness defence’ and, if made out, means a person must be found not guilty.

However, it is important to be aware this does not mean the person will be released into the community, but will need to come under the provisions of the Mental Health Act which may involve involuntary detention in a mental health facility.

That said, there are also provisions which apply to drug cases that are dealt with in the Local Court that allow a person to avoid a criminal record and even a finding of guilt on the condition they enter into a ‘treatment plan’ which normally involves seeing a mental health professional on a regular basis. 

One of these provisions is known as a ‘section 14 application’ (previously section 32 applications) and is frequently used for drug cases dealt with in the Local Court such as drug possession and small drug supply.

More information:

Automatism

The legal defence of automatism applies where a person’s otherwise criminal conduct was undertaken when he or she was not conscious of the nature of their actions nor exercising a choice to conduct themselves in that manner.

It most often applied to situations of ‘blackouts’ or sleepwalking, and is separate and additional to the defence of mental health or cognitive impairment.

Necessity

The legal defence of duress applies to offences under the Drug Misuse and Trafficking Act 1985 (NSW).

It is where a person’s otherwise criminal conduct was to avoid serious consequences to the person or another he or she was bound to protect, the person honestly and reasonably believed the consequences would occur and the conduct was not disproportionate the consequences.

There need not be an actual threat and, while the defence is rarely used in modern drug cases, it could apply in emergency situations where rash but understandable decisions are made.

A similar defence known as ‘sudden or extraordinary emergency’ is contained in the Criminal Code Act 1995 (Cth) and applies to offences under that Act.

This defence is where a person engaged in a crime because he or she reasonably believed that circumstances of sudden or extraordinary emergency existed, the conduct was the only reasonable way to deal with the emergency and was a reasonable response to it.

More information:

Self-defence

Self-defence is where a person engaged in otherwise criminal conduct because he or she believed it was necessary to defend themselves or another person, or too prevent the unlawful deprivation of their liberty or that of another person, or protect their property from being taken, destroyed, damaged or interfered with, or to prevent criminal trespass to their land, or remove a person criminally trespassing, and the conduct was a reasonable response in the circumstances as the perceived them.

Diversionary and Treatment Programs

There are several programs in New South Wales which seek to address underlying dependency issues and divert defendants away from the criminal justice system.

These include:

Drug Court of New South Wales

The Drug Court of NSW is located in courthouses at the Downing Centre in Sydney, in Parramatta, Toronto and Dubbo, which takes referrals from Local and District Courts for those whose drug habits are considered to have contributed to their criminal offending.

The drug court program normally lasts for 12 months during which participants undertake treatment for drug dependency, are provided with social support, and are required to comply with any court-imposed conditions, undertake supervised urine testing and come under the supervision of Community Corrections NSW.

Participants will normally be allowed to work and go about their lives in the community, subject to complying with program requirements. 

A legal benefit of the program is that completion will normally result in a non-custodial sentence, instead of imprisonment.

To be eligible, a person must be: charged with a criminal offence (other than one which renders him or her), have pleaded guilty or indicated a guilty plea, live within one of 22 specified Local Government Areas, be referred by a Local or District Court, be dependent on illicit drugs, be highly likely to receive a full time custodial sentence and be willing to participate.

A person is not eligible if charged with a sexual offence or one which involves violence, or a drug offence that is incapable of being finalised in a Local Court (such as commercial drug supply, manufacture or production) or if they have a serious psychiatric condition. Those with a history of violence may also be ineligible.

Places for the program are limited and a ballot is held in the event there are more applicants than availabilities.

More information:

Magistrates Early Referral into Treatment Program (MERIT)

MERIT is a 12-week voluntary diversionary program which gives those who are dependent on drugs or alcohol the opportunity to address their underlying issues through counselling, support, therapy and case management before they are sentenced for their offending conduct in the Local Court of New South Wales.

The program is available to those with substance dependency issues whose matters are dealt with in the Local Court, except for those charged with sexual offences.

Participants are required to comply with all of their bail conditions, regularly attend appointments and work towards goals that are set in collaboration with the MERIT team.

Progress reports are provided to magistrates during the course of the program and participants are free to withdraw from it at any time.

A final report is forwarded to the court at the program’s completion.

Over and above assisting participants to overcome their issues regarding substances of dependence, completing the program can lead to a reduced sentence and even to avoiding a criminal conviction altogether.

Surveys of magistrates suggest that completing MERIT is a significant factor taken into account during sentencing.

More information:

Smart Recovery Program

Smart Recovery is a cognitive behavioural therapy-based online treatment program whereby participants come together for 90-minute sessions during which facilitators seek to build and maintain motivation to overcome substance dependency issues or problematic conduct, cope with urges and cravings and manage thoughts, feelings and behaviours with a view to leading a healthy and balanced life through acknowledging underlying issues and developing self-empowerment.

The program is free of charge and the facilitators are volunteers with a genuine interest in helping participants to overcome their underlying issues.

A certificate is provided to those who participate in the program which magistrates and judges will take into account when assessing prospects for rehabilitation and the likelihood of reoffending.

Drug Offence Penalties

The penalties that apply to a drug offence will depend on several factors, including:

  • The type of drug or plant,
  • The quantity of the drug or plant, and
  • Whether the case is finalised in the Local Court – where the maximum penalty for any single offence is 2 years in prison – or a higher court such as the District or Supreme Court.

Click on the relevant link below for more information about the penalties that apply to specific drug offences:

Drug offences FAQs

Are all drug offences criminal offences in Australia?

Offences relating to prohibited drugs are all criminal offences across every Australian state and territory, except the ACT which has decriminalised the possession of small quantities of cannabis.

But the fact they are crimes does not mean they need to be pursued criminally.

For example, police in New South Wales can instead deal with drug possession which involves small amounts by issuing on-the-spot fines, and these do not come with a criminal record.

Police in NSW can also issue ‘cannabis cautions’ for the possession of small quantities of cannabis, which also do not carry criminal convictions.

For those who are arrested or issued with a court attendance notice for a drug offence and plead guilty or are found guilty, the magistrate or judge can impose a ‘non conviction order’ which allows them to avoid a conviction being recorded against their name.

And, of course, those who are charged and later acquitted will not have a criminal conviction recorded against them.

So, the bottom line is – while drug offences are classified as criminal offences across Australia (except for small cannabis possession in the ACT) they certainly do not always result in a criminal record.

What is the maximum penalty for a drug case?

The maximum penalty for a drug case depends on the specific offence brought, the type of prohibited or border controlled drug or plant, the quantity of those drugs or plants and whether the case is finalised in the Local Court (where the maximum penalty is 2 years in prison) or a higher court such as the District or Supreme Court.

The maximum penalties for drug cases range from 2 years in prison for drug possession up to life in prison for serious commercial supply, importation, manufacture or production.

What are the defence options for drug charges?

Defence options for drug charges include putting the prosecution to proof, which means making the prosecution establish each of the essential elements (or ingredients) of a drug offence beyond a reasonable doubt, as well as defending the case on the basis that a general legal defence such as duress, necessity, automatism or mental health applies – which the prosecution must disprove if raised. 

There are also specific defences that apply to many drug offences contained in the Drug Misuse and Trafficking Act 1985 and the Criminal Code Act 1990.

A person must be found not guilty if the prosecution is unable to prove every essential element of a drug offence, or if it is unable to disprove a general legal defence, or if a specific legal defence applies.

How long does a drug offence stay on record?

The general rule is that a conviction for a drug offence will remain on a person’s criminal record for 10 years, before it is capable of being ‘spent’ (deleted). 

However, certain convictions are not capable of being spent, including offences under the Drug Misuse and Trafficking Act 1985 (NSW) for which a person was sentenced to more than 6 months of full-time imprisonment, and drug offences under the Criminal Code Act 1995 (Cth) for which a sentence of at least 30 months of imprisonment was imposed.

Which courts deals with drug offences?

All drug charges brought against adults in New South Wales will commence in the Local Court.

Drug offences that carry a maximum penalty of 2 years or less are known as ‘summary offences’ and these will remain in the Local Court. An example of such an offence is possessing a prohibited drug, which is also known as drug possession.

Whether drug offences with higher maximum penalties are later ‘committed’ (referred) to a higher court such as the District or Supreme Court will depend on a range of factors, the most important of which are specific offence charged and the type and weight of the drug.

The decision as to whether a drug charge will be committed to a higher court will normally be made by the DPP.

However, the defence can also ‘elect’ (choose) to commit certain drug offences – although this would normally be unwise because the maximum penalties are heavier in the higher courts, and it can be more difficult to successfully appeal an unfavourable decision.

Some drug offences are ‘strictly indictable’ which means they must be committed to a higher court.  These include commercial drug supply, cultivation, manufacture or production.

Can I be found guilty of drug possession if I didn't physically possess the drug?

Possessing a prohibited drug means being in custody or control of it. This means you can be found guilty of drug possession if the drug was not in your physical custody,  but was somewhere else such as in your car, bedroom or safe,  as long as the prosecution is able to prove you had exclusive control of it.

Do I have to know which drug I possessed or was supplying to be guilty?

You do not need to know the precise type of drug that was in your possession or that was being supplied to be found guilty of possessing or supplying a prohibited drug – only that the substance was some type of prohibited drug.

What did I have to know to be found guilty of supplying a prohibited drug?

For you to be found guilty of supplying a prohibited drug, the prosecution must prove beyond reasonable doubt that you actually knew or believed what was being supplied was a prohibited drug, or were aware there was a significant or real chance it was.

Can I be guilty of drug supply if I didn't physically supply the drug?

You can be found guilty of drug supply if you are found in possession of more than the ‘traffickable’ quantity of supply. This is called deemed drug supply.

You can also be found guilty for ‘taking part in’ a drug supply, even though you did not actually supply anything.

You can additionally be found guilty of drug supply if you took steps towards supplying a prohibited drug, although it did not end up going to the intended recipient.

Do I have to know the quantity of the drugs supplied or cultivated to be guilty for that amount?

Where you have been charged with supplying a certain quantity of prohibited drugs or cultivating a certain number of prohibited plants such as the marketable, commercial or large commercial quantity, the prosecution must prove beyond reasonable doubt you knew or believed there was a significant or real chance it was at least that quantity.

Do I have to know the quantity of border controlled drugs that were being imported?

The prosecution does not have to prove you knew the actual weight of the border controlled drugs that were being unlawfully imported for you to be found guilty of importing that quantity, but it does have to prove you knew or were reckless as to whether that a border controlled drug was being imported.

What do I have to know to be found guilty of drug importation?

To be found guilty of drug importation, the prosecution must prove beyond reasonable doubt you knew a border controlled drug was being imported or were ‘reckless’ as to whether or not it was.

You were reckless if you were aware there was a substantial risk that border controlled drugs were being imported and it was unjustifiable to take that risk in the circumstances, but you went ahead with your actions regardless.

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:

    We offer free parking at our Sydney CBD offices, 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.

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