Drug possession in NSW carries a maximum penalty of 2 years in prison and/or a $2,200 fine.
However, a good drug defence lawyer can push for you to avoid a criminal record altogether, even if you wish to plead guilty.
If you have been charged with drug possession, call us anytime on (02) 9261 8881 to arrange a free first appointment.
We offer fixed fees for drug possession cases in all NSW courts.
Your Options in Court
You may be charged with possession where you have drugs on your person, or in your home or car.
There is no requirement that you have to own the drugs to be charged with possession – it will be enough that you knew, or should have known that you had them. This means that you could even be charged with possession where you were just holding drugs for a friend.
However, if you feel that you have some reason to explain or justify your actions, you may wish to plead ‘not guilty’ and fight the charges. For example, you may be able to argue that:
- You were not aware that the drugs had been planted on you, or you could not find drugs upon you after a thorough search
- Police conducted an illegal search (they did not have ‘reasonable suspicion’ to search you)
- You did not have exclusive possession of the drugs – for example, where the police find drugs in a shared are of your house, such as your lounge room or kitchen
- There was insufficient evidence to prove that you possessed the drugs – for example, where police claim that they saw you dispose of drugs when it is possible that someone else may have put them there.
If you are willing to accept the charges against you, you can enter a plea of guilty.
Pleading guilty at an early stage may be beneficial in some cases, as it illustrates to the court that you are sorry for your actions. Often, an early guilty plea will result in a more lenient penalty.
However, before you enter a plea, it’s important to speak to an experienced specialist drug lawyer as there may be some way in which you can fight the charges and be found ‘not guilty.’
If you wish to plead guilty, it is important to be informed about the types of penalties that you could face.
As drug possession is a summary offence, it can be dealt with in the Local Court, where the maximum penalty is 2 years imprisonment and/or a $2,200 fine.
However, these types of penalties will only apply in the most serious cases. In most cases, it is unlikely that you will be sent to gaol.
The type of penalty that you will receive depends on the facts and circumstances of your case. The court has the power to issue a range of different penalties, including:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
It’s important to remember that you can increase your chances of getting a lenient penalty by engaging a specialist drug lawyer. A specialist drug lawyer will have the expert knowledge and experience to navigate the law and ensure that you get the best possible result in your case.
In many cases, a specialist drug lawyer may be able to convince the magistrate to issue you with what is known as a ‘section 10.’ This means that while you will be found guilty of the offence, no conviction will be recorded on your criminal history, so you won’t have to worry about how the offence could affect your work or travel plans.
If you are facing charges in relation to drug possession, you will most likely want to equip yourself with all relevant information to ensure that you fully understand the charges and potential outcomes.
This section contains some further detailed information about the offence of drug possession.
How can I get charges dropped?
In some cases, you can have possession charges dropped at an early stage by arguing that the police performed an ‘illegal search.’
For police to be able to search you legally, they must be able to prove that they had what is known as a ‘reasonable suspicion’ that you had an illegal drug. This means that police can’t just search you randomly – they must have some kind of factual basis for their search.
The types of things which might constitute a reasonable suspicion include where a sniffer dog has indicated that you might be concealing drugs, where police have seen you doing a drug deal, or where police can smell cannabis inside your car or house.
Situations which won’t give rise to a reasonable suspicion include cases where police search you just because they think you look nervous or agitated, because you have a prior criminal history of drug offences, or because you’re in an area known for drug crime.
If police aren’t able to prove that they held a reasonable suspicion, we can fight to have the charges against you dropped, even if drugs are found upon you. In some cases, the police might even end up having to pay your legal fees.
However, police will not have to prove reasonable suspicion where you consented to the search. This means that where a cop has asked you whether you’ve got drugs on you, or where they have asked you to empty out your pockets and did so voluntarily, you won’t be able to fight the charge on the basis of an illegal search.
Your best shot at getting charges dropped is to get a good lawyer on your side. At Sydney Drug Lawyers we have helped hundreds of clients get charges dropped without proceeding to court. So call us now and let one of our experienced lawyers show you the best way forward in your case.
Lack of Exclusive Possession
Another way that you can fight the charge is where ‘exclusive possession’ cannot be proved. To be charged with drug possession, the prosecution must prove that the drugs were in your possession and control.
For example, where drugs are found in a common area such as your lounge room, kitchen or bathroom, there may be a possibility that they belong to someone else, like a friend or another family member. In these situations, you can write to the prosecution and ask that the charges be dropped as the prosecution cannot prove that the drugs were yours.
Lack of Evidence
Drug charges may also be dropped where there is insufficient evidence to prove that you possessed the drugs.
This may include situations where police claim that they saw you dispose of drugs when it is possible that someone else may have put them there, or where someone planted drugs upon you and you were unable to find them after a thorough search.
How can I avoid a conviction if I plead guilty to a drug possession charge?
In some cases, you might be able to avoid a conviction or penalty altogether by persuading the magistrate to issue you with a section 10, which means that while you’ll be found guilty of the offence, no conviction will be recorded on your criminal record.
There are a number of steps you can take to increase your chances of getting a section 10.
- Get Character References: The first thing you can do is try and get some character references to show the court that you are a good person, and that your actions were out of character. You can get character references from any reputable person who can show that you are a person of good character, for example, your employer, a religious or community leader, or a long-term friend. For some guidance on how to write a character reference, look at our page on ‘Character References.’[JF1]
- Write a Letter of Apology: You may also choose to write a letter of apology to the court. In many cases, the magistrate will take into account your remorse in determining a sentence, so this is a great step to take if you are hoping to get a section 10. Again, you might want to look at our page on ‘How to write a letter of apology’ for some guidance on what to include in your letter. [JF2]
- Consider Counselling/Rehab, Where Appropriate: You might also want to consider getting some drug counselling or enrolling in a rehab program. This will show to the court that you have taken positive steps to address your drug issues. In many cases, a counsellor or rehab case manager will provide a report to the court outlining how you have tried to resolve your drug issues, which can help you achieve a more lenient sentence. For more information on this, visit our ‘Counselling’ and ‘Rehab’ pages. [JF3]
- Consider the MERIT Program: Something else that you might want to consider is the MERIT Program, which is a program run by the courts to try and help people break the cycle of drug addiction and offending. Again, MERIT will usually provide a report to the court about your progress through the program, which can help you get a more lenient sentence. To find out more about this, visit our page on the ‘MERIT Drug Program.’ [JF4]
- Enter an Early Guilty Plea: Finally, the court may award you a ‘discount’ on your sentence for an early guilty plea. This means that you could get a shorter sentence or a lesser penalty by pleading guilty early on. Remember, it’s always a good idea to speak to an experienced lawyer before entering a guilty plea. They will be able to advise whether you are able to fight the charge or get the charges dropped, which is always better than receiving a penalty.
What kinds of penalties could I face?
The maximum penalty for drug possession is 2 years imprisonment and/or a $2,200 fine.
However, this is the maximum penalty only, which is reserved for only the most serious possession cases. In many cases, the court will impose a lesser penalty after considering all the facts and circumstances of your case.
Statistics indicate that the most common penalty for drug possession is a fine, with the average fine amounting to $300. The second most common penalty is a s 9 good behaviour bond, which means that the court will require you to be of good behaviour for a specified period of time – in other words, you will not be allowed to commit any further offences. The court may also impose additional conditions upon you – for example, you may be prohibited from entering a particular area.
However, by engaging a specialist drug lawyer, you may be able to persuade the magistrate to issue you with a section 10, which is where you are found guilty of the offence by no conviction is recorded on your criminal record.
If prohibited drugs are found in a common area of a ‘shared premises’ (eg lounge room, kitchen, bathroom, backyard, balcony etc), the prosecution must prove beyond reasonable doubt that:
- one occupant has ‘exclusive possession’ of the drugs; ie the drugs are his or her’s only; or
- several occupants ‘jointly possess’ the drugs; ie they all share in the exclusive physical control over the drugs.
See: R v Fillipetti (1978) 13 A Crim R 335.
If ‘exclusive drug possession’ is alleged, the prosecution must prove beyond reasonable doubt that none of the other occupants may have possessed the drug, and that no-one else may have left the drugs there eg a visitor.
This can be difficult to prove if the defendant has not made ‘admissions’ (ie confessed to possessing the drugs), or if there is no other evidence linking him/her to the drugs eg fingerprints on resealable bags, incriminating mobile phone messages, witness statements saying they were his/hers etc.
In these types of cases, the prosecution can often be persuaded to ‘drop’ the drug charges at an early stage.
If ‘joint drug possession’ is alleged, the prosecution must prove beyond reasonable doubt that each defendant intended to share in the exclusive physical control of the drugs.
Again, this can be difficult to prove without further evidence; eg mobile phone video of all occupants using the drugs, ‘admissions’ by the occupants, witness statements etc.
It is therefore possible to convince police to ‘withdraw’ these charges early in the proceedings.
Police must follow specific rules before they can search any motor vehicle (see ‘Illegal Searches’ below).
If they follow those rules and find prohibited drugs, the owner or passenger/s of the vehicle may be charged with drug possession.
However, a passenger cannot be convicted of drug possession just because he or she is in a vehicle containing drugs.
There must be evidence that he or she could have exercised control over those drugs, eg used them, taken them away, etc; Harris  Crim LJ 256.
Also, it has been found that the owner of a car containing drugs in the boot is not guilty of drug possession if he did not possess the keys at the relevant time, eg if the keys were with someone else; Barron v Valdamis  ACLD 374.
Also, mere possession of car keys does necessarily prove possession of drugs inside the car, especially if there is evidence that others could have accessed the car, eg if several persons had keys, if a friend recently drove the car, etc ; Amanatidis (2001) 125 A Crim R 89.
The best thing to do is to say nothing, as there may be a way to fight against your drug possession charge.