Possess a Prohibited Drug

What is the offence of possess a prohibited drug?

The offence of Possess a prohibited drug is found at section 10 of the Drugs (Misuse and Trafficking) Act 1985.

Possess a prohibited drug is a frequently charged offence on account of the prevalence of drugs in society and at heavily policed events such as music festivals. The consequences of a drug conviction can be catastrophic for a person’s employment or travel plans. Whilst this offence is often difficult to defend on account of the drugs being found literally in possession of a person by the police, it is a charge that our criminal lawyers are frequently able to have dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. Read more about section 10 here.

If you are charged with the offence of Possess a prohibited drug, your options will normally be to plead guilty or not guilty.

Pleading not guilty

You will be found not guilty of the offence of Possess a prohibited drug if the police cannot prove beyond reasonable doubt:

  1. You had a prohibited drug in your possession; and
  2. You knew the prohibited drug was in your possession, or you knew of its likely existence, or you believed that it was a narcotic drug of some kind even if you were unaware of the actual type.

Physical possession means de facto possession or exclusive physical control of the drug. Constructive possession is where the person does not have actual possession, but has the legal right to take possession whenever the person wishes to do so. For the purposes of the criminal law the accused must know of the existence of the property and intend to exercise physical control over it

Where the police allege you had exclusive possession of a drug but the drug is found in a communal place, police must negate possession on the part of any other person, e.g. other occupants of the house which you live.

If the police are able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established:

Contact our offices in Sydney, Parramatta, Blacktown or Redfern to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of Possess a prohibited drug.

Pleading guilty

If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.

Possess a prohibited drug, carries a maximum penalty of 2 years imprisonment and/or a fine of $2,200.00; however, these penalties are typically reserved for the worst offenders. Our solicitors have a proven track record of not only keeping our clients out of gaol but also having the offence dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about a section 10, click here.

Penalties that a court can impose in NSW are:

Case Study

AC Law Group appeared for an Accused person who had been pulled over by the police and drugs found in the side compartment of a company car. Our solicitor argued that the police could not prove the cocaine and methylamphetamine belonged to the Accused as opposed to another person. The Magistrate at Penrith Local Court ultimately ordered that the charges be dismissed and ordered the police pay the legal costs of our client.

Case Study

AC Law Group appeared for a young person who had admitted to police to having 10 ecstasy tablets for personal use at Stereosonic. Our solicitor tendered a copy of an employment contract showing that the young person could lose his job if convicted of a criminal offence. He also tendered bank statements showing that the young person was struggling to repay a mortgage and submitted he would default if he lost his job. The Magistrate agreed that the effect of a conviction on his employment outweighed the need to punish the young person. The Magistrate dismissed the matter pursuant to section 10 and the young person was not convicted.

Case Study

AC Law Group appeared for a young person charged with possession of four ecstasy tablets at a music festival. The young person had received a section 10 for malicious damage 4 years earlier whilst at university. Our solicitor argued that the receipt of a section 10 years prior did not prohibit the court from using the section a second time. Further, he argued that the previous conviction was more a product of university skylarking than any propensity for criminal behaviour. The Magistrate agreed and dismissed the charge under section 10, recording no conviction.

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