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If you have been charged with drug possession, NSW, like all states has its specific laws that could see you receiving penalties ranging from imprisonment, good behaviour bonds, and fines, to guilty pleas without a conviction being recorded.

Having the right defence can be the difference between goal time and walking free with lesser charges, including avoiding a criminal record altogether. 

Non convictions are possible, whatever the possession charge 

It is even possible to avoid a criminal record if you have been caught with illegal drugs and you chose to plead guilty.   Section 10 – non convictions are possible with the right legal team in your corner.   Australian criminal Law Group’s drug defence lawyers have proven it’s capable to even get more serious possession charges reduced and no convictions recorded, where maximum penalties would otherwise have included imprisonment.   

If you have been caught with illegal drugs or are even at risk of being caught, it is important you know and understand how the law works and to have the right legal representation in your corner.   Read on to learn more about the ways in which the right defence can help and how getting a section 10 – non conviction is possible for drug possession charges. 

Understanding drug possession charges that can be brought against you 

In NSW, police can charge you with a number of offences relating to drugs. These include:

  • Possession: Possession means being caught with drugs for your own personal use.
  • Use: If you are caught in the act of using drugs or are clearly under the influence of drugs, you may be charged with drug use.
  • Supply: Supply applies when you are caught in the act of distributing drugs to other people.
  • Deemed Supply: You may be charged with this if you are holding enough drugs that the police can reasonably assume you are intending to sell or supply drugs to others. These amounts are specifically:
    • cannabis (leaf or heads) – 300 grams 
    • heroin – 3 grams 
    • amphetamine – 3 grams 
    • ecstasy – 3 grams or 15 tablets 
    • LSD – 0.003 grams or 15 tablets
  • Holding Drug Equipment: If you have drug paraphernalia such as tourniquets, swabs, and spoons along with syringes, you may be charged with holding drug equipment.
An open tin laying on its side on a wooden desk, revealing the drug paraphernalia inside and a single cigarette. The tin includes a syringes and a spoon.

 

There are other, more serious charges as well, pertaining to manufacture and supply, such as running a ‘drug premises’. These charges tend to be for people who deal or supply drugs in very large quantities, not for recreational users.

The penalties for drug possession in NSW

For drug possession, NSW carries a number of possible penalties. If you find yourself in court for possession, in general, the highest penalties will be an $11,000 fine and two years imprisonment.  

The amount of drugs in your possession and your previous record will have a strong influence on the harshness of your penalty. 

On the spot fines/penalty notice scheme

Recently, NSW police have refined their rules for on the spot fines for drug possession. 

Under the penalty notice scheme, NSW police can now issue an on the spot fine, known as a penalty notice, for possession of small amounts of drugs at their discretion. The fine is usually $400. 

This applies if you are caught with:

  • MDMD/ecstasy in capsule form, 0.25grams or less
  • MDMA/ecstasy in any other form weighing 0.75grams or less
  • Any other prohibited drug not weighing more than the ‘small amounts’ outlined for personal use. These small amounts are:
    • amphetamine: 1 gram
    • cocaine: 1 gram
    • ketamine: 2.5 grams
    • LSD: 0.0008 grams
    • methylamphetamine: 1 gram

An on the spot fine for drug possession is similar to a speeding fine or parking fine. If you are given a notice like this, you will have 28 days to pay and you will not be required to attend court. You will also not receive a criminal record. Like a speeding or parking fine, you may contest the fine if you wish. However, this will result in court proceedings and the risk of even higher penalties.

Cannabis Caution Scheme

One thing to note is that cannabis is not eligible for the on the spot fine because of the recent cannabis caution scheme. It is more than likely police will only issue a caution for having cannabis, so long as you:

  • Have less than 15grams of cannabis on you
  • Admit to having it for personal use
  • Have no prior drug convictions
  • Are not committing another criminal offence when caught with cannabis
  • Do not have more than two prior cautions for cannabis possession 

Remember, this does not give you the freedom to possess cannabis. The substance is still considered an illicit drug and the cautions are given out at police discretion. 

Read more about Cannabis laws in Australia

Another thing worth noting is that on the spot fines and cannabis cautions are issued at police discretion. Even if it is a first offence, police still have the right to arrest and charge you and send you to court. 

The image shows a man smoking what appears to be a drug, most likely cannabis. It is a close up shot and his identity is not known.

 

For that reason, it is always recommended to behave politely and cooperatively with police officers. If you are caught in possession of drugs, they will be far more likely to use their discretion if you present as a reasonable and decent citizen. Politeness could prove the difference between a slap on the wrist and lengthy and expensive court proceedings. 

The defences for drug possession NSW

For drug possession, NSW has a number of defences that may excuse you from any crime. 

Take a look at some of the defences which may reduce your likelihood of heavy penalties for drug possession:

  • If it is found that the police officers involved found the drugs in an illegal way. For instance, if police searched you or your premises without due cause. This is a very important item to be aware of and it will be well worth reading our other blog posts on police searches and sniffer dogs as well as reading the Law Handbook for NSW.
  • If you were unaware of the existence of the drugs or even the likelihood of their existence. For instance, if you can show to the court’s satisfaction that you did not know there were drugs in your premises.
  • If the drugs were found in a common area. For example, if you were staying in a backpackers hostel and drugs were found in your shared room. You could argue they could have been placed there by any other current or former occupant.
  • If you can show that you had the drugs in your possession through necessity or duress. Say, if someone threatened your safety if you did not hold the drugs.
  • If the drug proves not to be on the prohibited substances or plants list. Clearly, in this case there has been no offence.

Case study:  Charges Dismissed and Police Ordered to Pay 

Australian Criminal 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.

A man being pulled over in his car. The image shows the man sitting inside the car and reaching out of his open window and handing something to somebody on the other side.

Drug possession NSW: How should you plead? 

Pleading guilty or not guilty to charges of drug possession can be a very difficult decision. If you find yourself in this situation, it is very important you get legal assistance and talk through every detail in making your final decision. 

In general, there are two ways to look at it. Firstly, if you truly believe that one of the defences above applies to you, it may be worthwhile pleading not guilty. If the court accepts your argument and settles in your favour, you will be free of fines or criminal charges.

Of course, court proceedings can still be expensive and penalties are often harsher if you are eventually found guilty by the court. You will want to be very sure of yourself and your case and have talked at length with your legal representative if you wish to plead not guilty.

Entering a guilty plea should result in a much faster court experience, and potentially lesser penalties. If you have talked through your case with your legal representative and they advise you to plead guilty based on their experience representing clients on drug possession charges, it is best to do so. 

Generally speaking, the court looks favourably at the admission of guilt, especially for a first time offender. This will often result in the minimal penalty, far less time in court and a much lower risk of a permanent criminal record.

Drug possession: How to avoid conviction

The right defence could mean a section 10- non conviction, meaning you can avoid a criminal record. 

The best way to avoid drug sentencing and penalties is not to have drugs in your possession. If you avoid drugs altogether, there will be no reason for the police to charge you in the first place. 

If you do choose to use or carry drugs, the next best plan to avoid conviction is to only have small amounts. Should you be caught by police, be polite and cooperative. The police may treat you kindly. 

Should being caught with drugs mean you end up in court, there are still ways to avoid conviction. Firstly, through the defences listed above. If you plead not guilty and the court agrees that your case matches one of the listed defence, you will receive no conviction.

Even for a guilty plea, there are ways to avoid conviction:

  • Pleading guilty early: The earlier you plead guilty, the more the court is likely to be lenient. Remember though, it is still important to take the time to talk with your legal representative.
  • Character references: If you can have a number of people write you references in support of your good character, it will work to your benefit. Have them state clearly that they believe you are a good person and that your behaviour was out of character. Friends and family can provide character references. Employers, religious representatives or teachers are also a good choice. 

When requesting a character reference, ask people not to tell the judge to be lenient or write about their opinions of the criminal justice system. They should focus on how you contribute to society in a positive way and why they believe you are a good person.  Read more about how to write a good reference here.

  • Write an apology letter: This is an excellent way to show the court your remorse. Judges sometimes look more kindly on a first time offender who is genuinely remorseful and sorry for what they have done.
  • Counselling or rehab: If you feel it is appropriate, the court will appreciate a willingness to work towards a drug-free future. This will show an acceptance of guilt as well as the desire to move on. Your counsellor can also report to the courts for you and share updates of your progress.

A criminal record for drug possession is best avoided at all costs as it can severely hamper your future employment and lifestyle opportunities. Such a conviction can prevent you from adopting or fostering children, immigrating to other countries or securing a travel visa. 

An image taken through the bars of a prison gate looking into a row of prison cells.

 

It is important you do everything you can to avoid such a record. However, if you follow these tips, present yourself neatly and appropriately in court, and talk closely with your legal representative, you will have a better chance of avoiding a conviction.

Case study – Section 10, non-conviction received

Australian Criminal 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 four 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.

Getting legal help for drug possession charges in NSW

Once again, it can not be stressed how important legal representation is for your time in court for drug possession charges in NSW. 

If you’re looking for drug offence lawyers, Sydney has some of the best.  

Joseph Harb, Australian Criminal Law Group’s special counsel at criminal law is recognised as one of Sydney’s best drug lawyers.  Joseph’s status as a renowned drug solicitor is due to his untiring commitment and reputation for getting his clients the best possible results every time. 

Don’t hesitate to contact the Australian Criminal Law Group for the best legal advice and representation NSW has to offer. Feedback from our clients describes us as essential in achieving the best outcomes and praises our time and dedication. Past clients share that we are an amazing team, which is empowered to win against slim odds.

Australian Criminal Law Group has offices in Parramatta, Blacktown and central Sydney. Contact us for your initial consultation. 

Case Study – Supply charge reduced, good behaviour bonds received

Mr Harb appeared for a client, successfully getting a supply charge for ecstasy tablets reduced to Possession.  The client was caught carrying 110 ecstasy tablets at a Future Music Festival resulting in the supply charge.    However, Mr Harb successfully convinced the court that the charge should be downgraded to possession given that 88 of those tablets were actually being held for a friend and so, only 22 were his.   For this, the client successfully avoided gaol time, receiving a sentence of two good behaviour bonds without conviction and requiring that the client undertake weekly urine drug testing for a 9 month period.    

Case Study – Supply charge withdrawn, non conviction received

Mr Harb successfully convinced the DPP to withdraw supply charges against a client charged with the supply of 9 grams of cocaine.   Instead, a guilty plea to the charge of possession was made in place of the more serious supply charge.  As a result the matter proceeded to  sentence in the Local Court and the magistrate did not record a conviction. 

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