Prohibited Drug Possession
What is Prohibited
Drug Possesion?
In New South Wales, possession of a prohibited drug is a criminal offence under Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW). It refers to knowingly having a prohibited drug in your custody or control, whether on your person, in your property, or somewhere you have access to and control over.
A prohibited drug includes substances such as:
Cannabis
Cocaine
MDMA (ecstasy)
Heroin
Methamphetamine (ice)
LSD
Psilocybin (magic mushrooms)
Ketamine
Prescription drugs held without a valid prescription (e.g. Xanax, Valium)
A full list of prohibited drugs is outlined in Schedule 1 of the Drug Misuse and Trafficking Act - Link Here.
To convict someone of drug possession, the prosecution must prove:
The substance was a prohibited drug, and
The accused knew or should have reasonably known it was in their possession.
The drug does not need to be found on the person directly—it could be in their bag, car, or home, provided they had control and knowledge of its presence.
The Penalties of
Prohibited Drug Possession
The penalties for possession of a prohibited drug vary depending on the type and amount of drug, the circumstances of the offence, and the offender’s prior criminal history. The standard penalty for drug possession is:
Maximum penalty:
2 years imprisonment and/or
A fine of $2,200, if dealt with in the Local Court.
Several factors may reduce the severity of penalties for drug possession in NSW. Courts are more likely to show leniency if the individual is a first-time offender, was found with only a small quantity intended for personal use, and has no prior criminal record. Demonstrating cooperation with police during the investigation, entering an early guilty plea, and showing a willingness to engage in drug rehabilitation or counselling can also weigh in the accused’s favour. These mitigating circumstances may lead to a reduced sentence, non-custodial penalties, or eligibility for diversion programs that avoid a criminal conviction.
However, certain aggravating factors can lead to more severe penalties for drug possession. These include being found in possession of a large quantity of drugs, particularly if it is close to the legal threshold for deemed supply, which may raise suspicion of intent to distribute. Possessing drugs in a school zone or near children is also treated more seriously by the courts due to the increased potential harm to the community. Additionally, individuals with prior convictions for drug-related offences are less likely to receive lenient treatment. If there is any evidence suggesting an intent to supply, such as possession of scales, bags, or large sums of cash, the matter may be escalated from a possession charge to a supply offence, significantly increasing the potential penalties.
Diversion Programs
& Alternative Sentences
For minor drug possession cases, particularly those involving first-time offenders, the court in NSW may consider a range of diversion programs and alternative sentencing options. These include a Section 10 dismissal or a Conditional Release Order (CRO), which allows the accused to avoid a criminal conviction if they comply with certain conditions.
Courts may also refer eligible individuals to drug diversion programs, such as the MERIT (Magistrates Early Referral Into Treatment) program, which focuses on rehabilitation and treatment rather than punishment. In some cases, a good behaviour bond without conviction may be imposed, allowing the person to demonstrate accountability and avoid long-term legal consequences.
Diversion programs are beneficial because they provide offenders with the opportunity to address the root causes of their drug use, such as addiction or mental health issues, while also keeping them out of the criminal justice system. This not only increases the chance of long-term rehabilitation but also protects future opportunities for employment, education, and travel by avoiding a criminal record.
The Possible
Defence Strategies
There are several defence strategies that may be used to fight a prohibited drug possession charge, depending on the specific circumstances of the case. The prosecution must prove two key elements beyond reasonable doubt; that the substance is a prohibited drug, and that the accused knowingly had custody or control of it. A strong legal defence can challenge these elements in various ways:
Lack of Knowledge
One of the most common defences is that the accused did not know the drug was in their possession. For example, if the drug was found in a shared space like a car or apartment, it may be argued that someone else placed it there without the accused’s knowledge.
Lack of Exclusive Possession or Control
If the drug was not on the person but in a place accessible to others—such as a shared home, luggage, or glovebox—this can raise reasonable doubt as to whether the accused had control over the substance.
The Substance Was Not a Prohibited Drug
The defence may challenge the drug identification process. If the substance has not been properly tested and confirmed as a prohibited drug by a certified laboratory, this may result in dismissal of the charge.
Unlawful Search or Police Misconduct
If police conducted an illegal search (e.g. without a warrant, proper consent, or reasonable suspicion), the defence may argue that the evidence was unlawfully obtained and should be excluded under the Evidence Act 1995 (NSW).
Mental Health Defence
Argues the accused was suffering from a mental illness at the time of the offence and did not understand the nature or wrongfulness of their actions.
May result in a special verdict of not guilty by reason of mental illness and diversion to a mental health facility.
Choosing Sydney Defenders to represent you in a drug possession matter ensures you receive the highest level of legal expertise, discretion, and strategic defence. An illegal drug possession charges carry life-altering penalties and consequences, including a criminal record. Our firm understands the immense pressure clients face in these circumstances and provide strong, confidential support from the outset. We offer access to an exclusive network of seasoned criminal defence barristers, regularly briefed in complex matters held in both District and Supreme Court. Our robust legal team conducts meticulous case preparation, critically analyses the prosecution’s evidence, and develops tailored defence strategies designed to maximise the individual’s chances of acquittal or sentence reduction. Sydney Defenders are committed to always providing sound legal advice and preparing a strong defence case to achieve the best possible outcome for the specific situation.