Facing a Drug Possession Charge? You’re Not Alone.

A prohibited drug is defined as “any substance, other than a prohibited plant, specified in Schedule 1”, as seen in Section 3 of the Drug Misuse and Trafficking Act 1985 (NSW).

Recently, rules have been refined by the NSW police to introduce ‘on-the-spot’ fines for drug possession.

Under this ‘Penalty Notice Scheme’, you may now be issued with an on-the-spot fine if you are found to be in possession of small amounts of drugs. This is at the police’s discretion, meaning that you still may be required to go to court if the police issues you with a Court Attendance Notice (CAN).

The Penalty Notice Scheme may apply if you are caught with a prohibited drug not weighing more than the ‘small amount’ outline for personal use, such as one of the following:

• MDMA/ecstasy (in the form of capsules) weighing 0.25 grams or less;
• MDMA/ecstasy (in any other form other than capsules) weighing 0.75 grams or less;
• Cocaine weighing 1 gram or less;
• Methylamphetamine (Crystal Meth/Ice) weighing 1 gram or less;
• Ketamine weighing 2.5 grams or less
• Amphetamine weighing 1 gram or less; or
• LSD weighing 0.0008 grams or less.

If you are issued an on-the-spot fine for possession of a prohibited drug, it is similar to fines you receive for speeding or driving through a red light. You will have 28 days to pay the fine and you are not required to attend court, meaning that you will not receive a criminal record. However, you may still elect to take the matter to court if you wish to contest the fine.

It is important to note that Cannabis does not fall under the Penalty Notice Scheme due to what is known as the ‘Cannabis Caution Scheme’. This is a scheme where the police may decide not to issue you a Penalty Notice or a Court Attendance Notice altogether, provided that you:

• Have no prior drug convictions on your record;
• Have 15 grams or less of cannabis in your possession;
• Acknowledge that the cannabis was for personal use;
• Have not committed another offence when you were caught with cannabis; and
• Have not already received two cautions for possession of cannabis.

The Cannabis Caution, similar to the Penalty Notice Scheme, is also at the police’s discretion. This means that they may still choose to issue you with a Court Attendance Notice if they wish to do so.

When you are charged with drug possession, you will be given a court date.

At this court date, you can indicate one of two pleas to the court:

Guilty

This means you accept that you are guilty of drug possession and are seeking leniency from the court as to the outcome of your sentencing. This includes receiving a Conditional Release Order (CRO) without receiving a conviction or criminal record, formerly known as a ‘Section 10 good behaviour bond. (See below for all possible sentencing outcomes)

Not guilty

This means that you do not accept that you are guilty of drug possession.

There are several defences to the charge of drug possession. (See below for defences)

Should you enter a plea of not guilty, it will mean that there will be an eventual hearing date where the police and witnesses will attend court and provide evidence as to why the court should find you guilty of drug possession.

Should you be found not guilty of drug possession, your charge/s will be dismissed and you will not receive a conviction on your criminal record.

Pleading Guilty to Drug Possession in NSW

You may plead guilty to the offence of possession of a prohibited drug if you accept the charge/s against you as well as the ‘facts’ alleged by the police and their version of events. Your matter will then be listed for sentence.

One of the benefits of entering an early plea of guilty is that this shows the court that you are remorseful, which is one of the considerations the court takes into account when determining the sentence and often assists greatly in receiving a lenient outcome.

Another benefit to entering an early plea of guilty is that this allows you to receive a 25% discount on your any sentence that you receive.

It is important to be aware of all the possible penalties you may receive when entering a plea of guilty to possession of a prohibited drug.

The law in NSW states that the maximum penalty for drug possession is 2 years imprisonment and/or a $2,200 fine.

Pleading Not Guilty to Drug Possession in NSW

Should you be found to have prohibited drugs in your possession, whether it be on your person, in your car or in your home, you may be charged with possessing a prohibited drug.

The law in NSW does not require you to own the prohibited drugs in question. For example, you will still be guilty of possessing a prohibited drug where you are ‘holding on to the drugs for a friend’.

However, you may not found not guilty of drug possession in NSW under certain circumstances where you can justify why you were found to be in possession of prohibited drugs, such as:

• You had no knowledge that the drugs were planted on your person.
• You did not have ‘exclusive possession’ of the drugs (for example, where the drugs were found in an area of your house that is shared with other people, such as the living room or backyard.
• The police conducted an ‘illegal search’, meaning they did not have your consent, they did not have reasonable suspicion to conduct the search, nor did they have a search warrant.
• You made an honest and reasonable mistake of fact (for example, you believed that the drugs that were in your possession were not a prohibited drug where someone has given you what you believed to be a legal substance).

In order to increase your chances at receiving leniency or a good behaviour bond with ‘no conviction’ from the courts at sentencing, you should engage an experienced criminal and traffic lawyer who can assist you in preparing documents and ‘subjective materials’ for court.

There are certain factors the courts consider when determining whether or not to extend leniency to you on sentence, such as whether or not this is your first offence, whether or not you are remorseful and contrite for committing the offence and what the chances are that you will reoffend if you are offered leniency.

There are a number of steps you may take to increase your chances at receiving leniency:

Obtain character references

Character references are an excellent way to show the courts that you are a person of ‘good character’ and that what you did was ‘out of character’.

These are factors that the courts may take into consideration when deciding your sentence. These character references can normally be obtained from people who know you, such as parents, siblings, long-term friends, and employers. A letter from an employer can be especially helpful if a conviction or criminal record will affect your employment.

Write a letter of apology

An apology letter is a good way to show the courts that you are ‘remorseful’ for your actions.

Remorse is another factor that the courts may take into account during your sentence and assists the courts in giving you leniency. An apology letter along with your plea of guilty at the earliest opportunity go a long way to show the courts that you are remorseful. You should also be mindful not to ‘make excuses’ for your actions in your apology letter and acknowledge that you are guilty of the offence.

Rehabilitation

It may also be beneficial for you to engage in counselling or a rehabilitation program. This shows the courts that you have ‘good prospects of rehabilitation’ and is another strong factor for the courts in determining your sentence and the leniency may grant you. Furthermore, it also shows the courts that you are ‘unlikely to reoffend’.

This shows the courts that you are taking steps to address your issues and that the chances of you committing this offence again are minimal. You should also consider discussing what you learned from your counselling and drug rehab program in your apology letter to show the courts that you have been taking your learning seriously.

If you are charged with drug possession in NSW, you may have certain defences available to you under certain circumstances where you can justify why you were found to be in possession of prohibited drugs and may result you being found not guilty for the offence, such as:

• You had no knowledge that the drugs were planted on your person.
• You did not have ‘exclusive possession’ of the drugs (for example, where the drugs were found in an area of your house that is shared with other people, such as the living room or backyard.
• The police conducted an ‘illegal search’, meaning they did not have your consent, they did not have reasonable suspicion to conduct the search, nor did they have a search warrant.
• You made an honest and reasonable mistake of fact (for example, you believed that the drugs that were in your possession were not a prohibited drug where someone has given you what you believed to be a legal substance).

In NSW, the offence of possess prohibited drug is a summary offence, it can be dealt with in the Local Court which limits the maximum sentence of imprisonment that can be imposed for any offence to 2 years.

During sentencing, the court takes into account your circumstances and the facts surrounding the incident to determine the penalty that you receive.

The Crimes (Sentencing Procedure) Act 1999 NSW determines the possible penalties you may receive, which are as follows, starting from the most lenient outcome:

• Section 10 dismissal
• Conditional Release Order (CRO)
• Fine
• Community Corrections Order (CCO)
• Intensive Corrections Order (ICO)
• Prison