Possession of Prohibited Drug – s 10 Drugs Misuse & Trafficking Act 1985 (NSW)

The maximum penalty for this offence is:

• imprisonment for 2 years; and / or
• a fine of $5,500.00

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• Prohibited drugs were in your possession; and
• You knew or should have known that prohibited drugs were in your possession.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A fine
  • This may be up to $5,500.
•  A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option when aggravating circumstances exist. An example of an aggravating circumstance includes a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• prohibited drugs were in your possession; and
• you knew or should have known that prohibited drugs were in your possession.

If the Prosecution cannot prove all of the above elements beyond a reasonable doubt, then the court must find you not guilty.

Defences to drug possession:

• An honest and reasonable mistake of fact.
  • This is a genuine belief that the substance held in your possession was not a prohibited drug.
• A Filipetti / Exclusive possession defence.
  • This is where more than one person had access to an area where goods were located by police. It may therefore be difficult to prove who had ‘personal custody’; or that ‘joint possession’ was held (if joint possession charges are laid.)
• Unintended custody or control of a prohibited drug.
  • An example of this may be where someone has slipped drugs into your suitcase without your knowledge.
• Duress.
  • Another person threatened or coerced you into taking possession of the prohibited drugs
• Statutory defences.
  • You assisted the care of another person for whom the prohibited drug had been lawfully prescribed.
  • There is a valid legal reason that prohibited drugs were in your possession. EG. scientific research or study.