Drug Offences
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Drug Possession Laws in New South Wales
Drug possession is a serious crime that can have significant consequences, including fines, imprisonment, and a criminal record. In NSW, drug possession laws are particularly strict, and it is essential to understand the legal implications and protect yourself from the harsh consequences of a conviction. In this article, we will explore the drug possession laws in NSW and offer tips on how to avoid legal trouble and safeguard your future.
What You Need to Know
What is Drug Possession?
Drug possession refers to the act of having prohibited drugs in your possession or control. In NSW, it is illegal to possess any amount of a prohibited drug, including marijuana, cocaine, ecstasy, and heroin. It does not matter if the drug was for personal use, intended for distribution, or if you were unaware that it was illegal. Possessing a prohibited drug is a criminal offence, and you can be charged and convicted regardless of your circumstances.
What are the Penalties for Drug Possession in NSW?
The penalties for drug possession in NSW can be severe and depend on several factors, including the type and quantity of drug, the offender's criminal history, and the circumstances surrounding the possession. In general, the penalties for drug possession in NSW include fines, imprisonment, and a criminal record.
For example, possessing a small amount of marijuana for personal use can result in a fine of up to $2,200 and/or a maximum period of imprisonment of two years. Possessing larger amounts of drugs, such as cocaine or heroin, can result in imprisonment for up to 15 years and a criminal record that can have lifelong consequences. The penalties for drug possession in NSW are designed to deter drug use and distribution, and the government takes a hard-line approach to drug-related offences.
Long-Term Consequences of a Drug Possession Conviction
The long-term consequences of a drug possession conviction can be devastating and can touch every aspect of your life, including limiting your employment opportunities, education, housing, social relationships, prevent you from traveling overseas, and impact your ability to secure housing or loans.
You may feel isolated and stigmatised, and it may be challenging to rebuild trust with loved ones or employers. The psychological impact of a drug possession conviction can be long-lasting, and it is essential to understand the potential consequences before engaging in drug use.
How to Protect Yourself from Drug Possession Charges in NSW?
The best way to protect yourself from drug possession charges in NSW is to avoid drug use altogether. However, if you choose to use drugs, it is essential to understand the legal implications and take steps to minimise your risk of being caught. For example, you should never carry drugs in public, and you should avoid using drugs in areas that are known to be frequented by police.
If you are struggling with drug addiction, you should seek professional help. There are several treatment options available in NSW, including rehabilitation programs, counselling, and support groups. Seeking help for drug addiction can not only help you overcome your addiction but also minimise your risk of facing drug possession charges.
Should you find yourself charged with any drug-related matter, please don’t hesitate to reach out to the experienced team at Jackson John Defence Lawyers. We can help guide you through this difficult time and achieve a successful result.
Drug Supply Laws in NSW
If you have been charged with a drug supply offence in Sydney or across the state of NSW, you are facing serious consequences that can have a significant impact on your life given the severe penalties. It is vital that you have the best possible representation to defend yourself against these charges. The skilled and experienced team at Jackson John Defence Lawyers can help you navigate the complex legal system and put forward a strong defence.
What is Drug Supply?
The Drug Misuse and Trafficking Act 1985 (NSW) prohibits the manufacture, sale, supply, or trafficking of any prohibited drugs. The Act outlines the penalties for drug supply offences, including varying periods of imprisonment and fines, dependent upon the type and quantity of the prohibited drug. To prove the offence of supply prohibited drugs beyond reasonable doubt, the Prosecution must have evidence which establishes the certain essential elements, discussed in detail below.
The Prosecution Must Prove You “Supplied”
The legal definition of supply is far wider than the ordinary understanding of the word and includes to sell or distribute, agreeing to supply, offering to supply, keeping or having in possession for supply, sending, forwarding, delivering or receiving for supply, authorising, directing, causing, suffering, permitting, or attempting any of those acts or things.
- A person can also be charged with supply if they “take part” in the supply by:
- Taking or participating in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply;
- Providing or arranging finance for any such step in that process; and/or
Providing the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee, occupier, or in the management of which the person participates.
Another basis upon which a person can be found to supply is where a person has in their possession or control a certain quantity of a prohibited drug, called the “traffickable” quantity. In this circumstance, the onus shifts to the accused person to prove on the balance of probabilities that he or she had the prohibited drug in his or her possession for a reason other supply.
Where the prohibited drug is found in a premises other than the accused person’s premises, the Prosecution must prove that the accused has the legal right to exclude all persons from the premises in which the substance is located (other than those acting in concert with him or her). Proof of the belief that the drugs were present will suffice and possession does not require proof that the accused person knew precisely where the item was at the relevant time.
However, there are limits to the application of this principle, often referred to as “deemed” supply. For example, if the substance is located in a shared room of house, the Prosecution will have difficulty establishing that the accused person was in exclusive possession of it. Furthermore, it is necessary for the Prosecution to prove knowledge of the existence of the drug. In circumstances where the accused person is but one resident of the house, and in the absence of any other facts which link him or her to the substance, it might be difficult for the Prosecution to prove the necessary element of control of the substance.
The Prosecution Must Prove the Substance You Supplied is a “Prohibited Drug”
Schedule 1 to the Act lists all types of prohibited drugs (see table). The Prosecution must provide an Analyst’s Expert Certificate from the NSW Forensic and Analytical Science Service (FASS) which confirms the substance seized from you was tested and is listed on Schedule 1 as a prohibited drug. The FASS Certificate must also list the weight and purity of the prohibited drug.
The Prosecution Must Prove You had “Knowledge” Substance was a Prohibited Drug
The authorities are clear: the accused must have knowledge that the substance is a prohibited drug of some form. A person charged with supply of a prohibited drug is guilty of that offence even if the drug actually supplied was different from the prohibited drug the offender believed the substance to be.
The Prosecution Must Prove You Knew the Approximate Quantity
The Prosecution is obliged to note the specific amount alleged to have been supplied by the accused. Although it is not a separate offence, where the Prosecution alleges a large commercial quantity, for example, the Prosecution should as a matter of practice include such an allegation in the indictment and the jury should be required to give a verdict on that matter.
Drug Charges by Quantity: Understanding Schedule 1 Thresholds
| Small | Trafficable | Indictable | Commercial | Large Commercial | |
|---|---|---|---|---|---|
| Amphetamine | 1g | 3g | 5g | 250g | 1kg |
| Cannabis Leaf | 30g | 300g | 1kg | 25kg | 100kg |
| Cannabis Oil | 2g | 5g | 10g | 500g | 2kg |
| Cannabis Plant | 5 plants | 50 plants | 50 plants | 200 plants | |
| Cocaine | 1g | 3g | 5g | 250g | 1kg |
| DMT | 1g | 3g | 5g | 250g | 1kg |
| LSD | 4 DDU or 0.0008g | 15 DDU or 0.003g | 25 DDU or 0.005g | 0.05g | 2g |
| MDMA | 0.8g | 3g | 5g | 250g | 1kg |
| Ketamine | 2.5g | 7.5g | 12.5g | 1.25kg | 5kg |
| Magic Mushrooms | 4 DDU or 0.04g | 15 DDU or 0.15g | 25 DDU or 0.25g | 25g | 100g |
The above table of amounts for popular party drugs provided in Schedule 1 of the Act.
Are There Any Defences?
It is essential to remember that being charged with drug supply does not automatically mean you are guilty. The team at Jackson John Defence Lawyers have extensive experience representing clients facing drug supply charges. We understand the nuances of drug supply laws and can provide you with the best possible defence to fight the charges.
For example, if you were not aware that the substance you were supplying was illegal, or were holding the substance for another person, you may have a defence. Additionally, if the police conducted an illegal search or seizure, any evidence obtained may be inadmissible in court.
As part of our representation, will explore all possible defences and strategies to defend you against any charges. Don't hesitate to contact the team at Jackson John Defence Lawyers today to discuss your case and start building a strong defence.
Possessing Quantities of Unlawfully Imported Border Controlled Drugs
Possessing quantities of unlawfully imported border controlled drugs is a serious offence that can have a significant impact on your life and reputation. If you have been charged with this offence, it is important to seek legal advice immediately.
What You Need to Know
The Law
Section 307.6 of the Criminal Code Act 1995 (Cth) states:
- A person commits an offence if:
- the person possesses a substance; and
- the substance was unlawfully imported; and
- the substance is a border controlled drug or border controlled plant; and
- the quantity possessed is a marketable quantity.
Examples of marketable quantities of unlawfully imported border controlled drugs are:
- Amphetamine: 2 grams
- Cannabis: 25 kilograms
- Cocaine: 2 grams
- GBL: 2 grams
- Heroin: 2 grams
- LSD: 0.002 grams
- Methamphetamine: 2 grams
- 3,4-Methylenedioxymethamphetamine (MDMA): 0.5 grams
- A person commits an offence if:
What Must the Prosecution Prove?
To be successful, the Prosecution must establish each of the following elements beyond a reasonable doubt:
- The accused possessed a substance; and
- The substance was unlawfully imported; and
- The substance is a border controlled drug or border controlled plant; and
- The quantity possessed is a commercial quantity.
What are the Types of Penalties?
The maximum penalty for the offence of Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants is 25 years imprisonment and/or a fine of $550,000.
This offence includes a wide spectrum of offending conduct. As such, the type of penalties varies greatly. The Court may consider sentencing you to one or more of the following:
Non-Conviction Order – Section 19B
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
- Good behaviour bond: this means you must be of good behaviour for a specific period, not exceeding three years.
- Supervision condition: this means you will be subject to a period of supervision by a probation officer, not exceeding two years. You must comply with that person’s reasonable requests.
- Restitution or compensation order: This means you must pay back any loss the victim has incurred as a result of the offending.
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
Fine
The maximum fine is 5000 penalty units for this offence. Many Commonwealth offences such as those in the Criminal Code Act 1995 (Cth) and Customs Act 1901 (Cth) are punishable by penalty units. Each penalty unit represents an amount of money, and the value of a Commonwealth penalty is indexed under a formula contained in section 4AA of the Crimes Act 1914 (Cth).
DATE OF OFFENCE VS. VALUE OF ONE PENALTY UNIT:
- On or after 1 July 2023: $313
- Between 1 January 2023 and 30 June 2023: $275
- Between 1 July 2020 and 31 December 2022: $222
- Between 1 July 2017 and 30 June 2020: $210
- Between 31 July 2015 and 30 June 2017: $180
- Between 28 December 2012 and 30 July 2015: $170
- Before 27 December 2012: $110
Conditional Release Order (CRO)
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Recognisance Release Order (RRO)
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
- That you be released immediately upon depositing a sum of money with the Court as a promise to comply with certain conditions; or
- That you be released after serving a portion of the total sentence. You can then be released upon entering into recognisance which requires you to deposit a sum or money to the Court as a promise to comply with certain conditions for the remainder of the sentence.
There is no maximum term for an RRO and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
Community Correction Order (CCO)
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Intensive Correction Order (ICO)
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
- The offence you’re being sentenced for is an excluded offence such as murder, manslaughter, prescribed sexual offences, terrorism offences, and discharge of firearms offences.
- The sentence is more than two years. However, if being sentenced for more than one offence, the period increases to three years total.
RPO – Section 21B
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
Imprisonment
This offence carries a maximum imprisonment of 25 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
- Any risk to the community if you are released;
- Your compliance and behaviour whilst in custody;
- Whether you complied with any Court order whilst in custody;
- The impact of your release on the victim or victim’s family;
- The nature of the offence you were imprisoned for;
- The sentencing Court’s remarks;
- Your criminal record;
- Any reports from Community Corrections or Corrective Services;
- The likelihood of you complying with any conditions imposed upon your release;
- If releasing you will assist in reintegration back into the community;
- Whether the parole period will be sufficient to assist in your rehabilitation; and/or
- Any special circumstances such as possibility of deportation etc.
Possible Defences
Not Meeting the Elements
A defence to the offence of possessing quantities of unlawfully imported border controlled drugs may be that the Prosecution cannot prove the requisite elements beyond a reasonable doubt. This may include:
- Lack of Possession: Contesting the assertion that the accused had any form of possession over the substance in question, refuting any physical or legal control over it.
- Non-Commercial Quantity: Arguing that the quantity of the substance held by the accused does not meet the threshold for classification as a commercial quantity.
- Non-Importation: Denying any involvement in the importation process of the substance, asserting that it was not brought into the country.
- Absence of Intent to Sell: Demonstrating that the accused neither harbored an intention nor held a belief that any part of the border controlled drug or border controlled plant, or their derivatives, would be sold to others.
Duress
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Necessity
For necessity to be established, the following must exist at the time of the commission of the offence:
- You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
- You honestly and reasonably believed that you were in a situation of immediate peril; and
- Your actions were reasonable and proportionate to the situation.
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Why Jackson John Defence Lawyers?
When confronting charges related to border-controlled drugs or plants, our team at Jackson John Defence Lawyers can assist you in building an effective defence. We have a wealth of experience handling Commonwealth offences, and our legal team understands the formidable resources of the CDPP and the AFP. We aim to provide superior representation, ensuring your rights are protected and helping you navigate the complexities of such prosecutions—Trust Jackson John Defence Lawyers for practical legal support and a tailored defence strategy.
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