Where a person is found in possession of a prohibited drug, the police will lay a charge under section 10(1) of the Drug Misuse and Trafficking Act 1985. 

The maximum penalty for this offence is 2 years imprisonment and/or a fine of $2,200.

This matter is dealt with in the Local Court.

The police have to prove the following elements beyond reasonable doubt:

1. A prohibited drug was in your ‘custody’ or ‘control’; 

2. The drug is in fact prohibited by law; and

3. You knew that you had custody or control of that drug.

How do police prove custody or control?

Having custody of the drug requires you to have immediate physical possession, even if momentarily. An example of this is where it is in your pocket.

Where you have control of it, this means that you intended to do something with it – ie use it, keep it, share it.

How do police prove custody or control?

The prosecution must prove you had exclusive possession (ie you had control over the drug). If the drug is found in a car that other people use or were in, or a house where other people live, the police may have difficulty proving this offence against you in the absence of evidence linking the drug to you.

Where police allege you were supplying or taking part in the supply of a prohibited drug, you will be charged under section 25 of the Drug Misuse and Trafficking Act 1985. 

You do not need to be caught in the act of a physical supply of a prohibited drug, to be found ‘supplying’. 

Supply – can mean selling, agreeing to supply/sell, offering to supply/sell, distributing, having it in your possession for the purpose of supply/selling, sending, forwarding, receiving deliveries.

Deemed Supply – means where you had drugs in your possession and, where the amount is not less than the traffickable quantity, police say you had it in your possession for the purpose of supplying it. If this is not the case, then the onus is on you to prove on the balance of probabilities that the drugs were in your possession for a reason other than for supply.

Ongoing supply – Police can charge you with a more serious offence under section 25A of the Drug Misuse and Trafficking Act 1985, if they can prove that you were involved in the supply of a prohibited drug on at least 3 separate occasions within a 30 day period.

The maximum penalty for this offence is 15 years imprisonment and/or a fine of $2,200.

Depending on the quantity of the drug, the matter can be heard in the Local and District Court.

For a ‘deemed supply’ offence, the police have to prove the following elements beyond reasonable doubt:

1. You supplied or knowingly took part in a supply of;

2. A prohibited drug (or a substance you represented as a prohibited drugs).

What if the drug is fake?

You can still be found guilty of a supply offence, even if it is a ‘fake’ drug. It is illegal in NSW to supply or intend to supply a substance that you have represented as a prohibited drug – for example, where a person crushes paracetamol in disguise of cocaine.

The offence of cultivating cannabis is found in section 23 of the Drug Misuse and Trafficking Act 1985.

The maximum penalty for this offence depends on the number of cannabis plants cultivated, and varies between 10 and 20 years imprisonment. If less than 250 cannabis plants are cultivated, the maximum penalty is 2 years imprisonment.

The police have to prove the following elements beyond reasonable doubt:

1. A person takes, or participates in, any step, or causes any step to be taken, in the process of the cultivation; or

2. A person arranged finance for a step in the cultivation process; or

3. A person provided the premises in which any step in the cultivation process is taken, or permits and step in that process to be taken.

A person ‘cultivates’ if they scatter or sow cannabis seeds to plant, tend to, grow or nurture cannabis plants.

The offence of importing a prohibited drug is governed under federal legislation, being section 307 of the Criminal Code 1995 (Cth).

The maximum penalty for this offence ranges between 2 years imprisonment up to life imprisonment.

The prosecution is to prove the following elements beyond reasonable doubt:

1. A person imported a substance intentionally into Australia;

2. That substance was a border controlled drug;

3. The quantity was above the commercial or marketable quantity.

Import is defined in the Criminal Code as importing a substance into Australia, and includes bringing the substance into Australia, and dealing with the substance in connection with its importation.

If you are considering Pleading Guilty to a drug related offence, it is important to speak to an expert criminal lawyer for advice. 

Where a person commits a drug offence due to their drug dependence and addiction, it may be useful to engage in the Magistrates Early Referral into Treatment Program (MERIT) prior to sentencing. It is a 12 week program targeted at drug and alcohol treatment and could help to reduce your penalty on sentence.

Where a person is found in possession of prohibited drugs, we also recommend the SMART Recovery Program targeted at young person’s making better life decisions (including with drugs, alcohol, behaviour etc). 

It is vital you speak with one of our criminal defence lawyers today to maximise your chances of receiving the best possible outcome.

‍25% Utilitarian Discount

‍When you plead guilty to a state offence at the earliest opportunity, you will receive a mandatory 25% discount on sentence.

It is a common misconception that only the pure form of a drug is counted in a drug offence. The law in NSW is that quantity of a prohibited drug involves the admixture – meaning that where the weight is 5 grams however the purity is 20%, the relevant quantity for the purposes of the criminal charge is still 5 grams.

See the below table outlining the following drug quantities: