First-time drug possession charges in NSW: What you need to know

Navigating your first drug possession charge is daunting when there is a lot to lose, including the possibility of a criminal record and imprisonment. However, there are other options to avoid all of that. Our drug lawyers Sydney team outline what you need to know as a first-time drug possession offender in New South Wales.

Legal Rights and Options for First-Time Drug Possession Offenders

A police officer in New South Wales has a discretion to issue a penalty notice fine to a drug possession offender if it appears to the police officer that the person has committed a 'penalty notice offence' pursuant to section 333 of the Criminal Procedure Act 1986 (NSW). Paying this fine results in no criminal record or conviction recorded.

In contrast, a police officer can therefore decide to charge the alleged drug possession offender by issuing him or her with a court attendance notice for the charge of drug possession - effectively requiring him or her to appear before the local court to face the allegations. Formally charging an accused person for a crime such as drug possession will also expose the accused person to a criminal record/conviction, and a maximum penalty of $2,200 fine and/or two years imprisonment unless the court dismisses the charge. This is the maximum penalty that a court can impose for possessing a prohibited drugs in NSW pursuant tosection 21of the Drug Misuse and Trafficking Act 1985 (NSW).

Once a police officer has issued a penalty notice fine for drug possession, a senior police officer may at any time withdraw it under section 340 of the Criminal Procedure Act 1986 (NSW). This also means, that if you have paid a penalty notice fine for drug possession, the amount paid will be repaid back to you if the penalty notice is withdrawn. A 'senior police officer' here means a police area commander, police district commander, duty officer for a police station or any other police officer of the rank of inspector or above.

Under section 338 of the Criminal Procedure Act 1986 (NSW), payment of a penalty notice fine for drug possession will mean that there will be no further liability to any further proceedings for the alleged offence. Payment of the fine is not to be regarded as an admission of liability for purposes of any civil claim, action or proceedings arising out of the same occurrence. Nor does paying it affect or prejudice the same.

Click here to find out what happens if you fail to pay a penalty notice fine on time.

If you cannot pay the penalty notice fine issued to you by police, you can instead, and in lieu of payment, partake in a drug health intervention under the Early Drug Diversion Initiative provided by, or on behalf of, NSW Health. Completing this activity will be treated as payment of the fine pursuant to section 23B(1) of the Fines Act 1996 (NSW).

Upon receiving a penalty notice fine for the possession of prohibited drugs, if you wish to dispute it, you may elect to not pay the fine and court elect the penalty notice. The back of the penalty notice outlines your options to court-elect, which can be done online. Upon court-electing a penalty notice offence, you will then be required to attend court and face the allegations. This option also then exposes you to the maximum penalty options available under the law including a criminal conviction at the court's discretion, unless the charge ends up getting dismissed.

It is strongly advisable to get timely legal advice before deciding on how to proceed

Alternatives to Prosecution for First-Time Minor Drug Possession

Any person in New South Wales caught possessing a first-time prohibited drug can be fined with a $400 penalty notice without a criminal conviction being recorded upon payment of the fine, in the following circumstances:

1. The drug is Ecstasy/MDMAin tablet formweighing less than 0.75 grams representing the taffickable quantity, or

2. The drug is Ecstasy/MDMA inany other formweighing no more than 0.25 grams representing the small quantity,

3. The drug is any other prohibited drug (other than cannabis leaf) weighing no more than the 'small quantity'.

Below is a list of the 'small quantity' of some common prohibited drugs.

If the possession is cannabis leaf, the police have discretion to issue a warning, without fine, without resorting to a criminal charge of drug possession if the possession of it is 15 grams or less; and

• It was for personal use; and
• The person has admitted to possessing it; and
• The person in possession is not involved in other criminal charges during this time; and
• The person has no previous criminal record relating to drugs, violence or sexual assault; and
• The person has not previously received the benefit of this caution more than twice.

In contrast, police may instead charge you if you have possession of cannabis leaf which will expose you to the maximum penalty of 2 years imprisonment and/or $2,200 fine with a criminal conviction unless the charge is dismissed in court.

When Police Cannot Issue a Penalty Notice Fine

A penalty notice fine cannot be issued to a person who is under the age of 18 years pursuant to section 335 of the Criminal Procedure Act 1986 (NSW). Furthermore, a penalty notice fine cannot be issued by police in relation to an industrial dispute, apparently genuine demonstration or protest, a procession or an organised assembly according to section 339 of the Criminal Procedure Act 1986 (NSW).

Drug Possession Charges and Penalties in Court

A person who has a prohibited drug in his or her possession, as a first time offender, is guilty of a criminal offence which carries a maximum penalty in New South Wales of 2 years imprisonment and/or $2,200 fine if charged and dealt with by the Local Court pursuant to section 21 of the Drug Misuse and Trafficking Act 1985 (NSW). In contrast, police can instead issue a penalty notice fine if it appears to the officer that the drug possession is a penalty notice offence- which avoids the exposure of going to court and receiving a criminal record/conviction.

Can Police Ask for my ID?

A police officer who intends to issue a penalty notice fine to a person whose name or address is or name and address are, unknown to the officer may request the person to state his or her name and/or address pursuant to section 342 of the Criminal Procedure Act 1986 (NSW). However, a police officer can make this request only if at the time of making it, the officer provides evidence that he or she is a police officer unless in uniform; and provides his or her name and place of duty, and informs the person of the reason for the request, and warns that person that a failure to comply with the request amounts to an offence.

Failure to comply with a lawful request for your ID by police in those circumstances without a reasonable excuse amounts to an offence carrying a penalty of up to $220 fine. This penalty applies if you fail or refuse to comply with the request, or state a false name, or state an address other than the full and correct address of your residence. This is outlined in section 341(3) of the Criminal Procedure Act 1986 (NSW). A police officer may request that you also provide proof of your name and address.

How to Defend First Time Drug Possession Charges in New South Wales Courts

You can successfully defence a drug possession charge in court if any one or more of the following defences apply to your case:

1. You had no knowledge that the prohibited drug was where it was found by police. For example, you did not believe that there was a real or significant chance that it was there.
2. You did not have the physical custody or control of the drug. If police allege that you had exclusive possession of the drug, yet the police fail to exclude the reasonable possibility that someone other than you had the physical custody or control of it. There needs to be some evidence to show the possibility that it belonged to someone other than you in order to raise this defence. This defence is known as the Filippetti defence known from the case of Filippetti (1978) 13 A Crim R 335.
3. You have a valid license or authority to have possession of the drug under the Poisons and Therapeutic Goods Act 1966.
4. You were acting under a poppy licence under the Poppy Industry Act 2016.
5. You were acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the drug is for the purpose of scientific research, instructions, analysis or study.
6. You were acting in accordance with a direction given by the Commissioner of Police under section 39Q of the Drug Misuse and Trafficking Act 1985 (NSW).
7. You were lawfully prescribed or supplied with the drug.
8. You are a person who has the care of, or is assisting in the care of, another person for or to whom the drug has been lawfully prescribed or supplied, and you have the drug in your possession for the sole purpose of administering, or assisting in the self-administration of, the drug to the other person in accordance with the prescription or supply.

Frequently Asked Questions

What is the minimum sentence for drug possession?

There is no mandatory minimum sentence for drug possession offences in NSW. However, the NSW Courts have the discretion to extend leniency when sentencing a drug possession offender with a section 10 non-conviction penalty which can be with or without a good behaviour bond pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW). This is often referred to as either a Conditional Release Order without conviction or a section 10 dismissal.

What is the punishment for taking drugs?

There is no penalty for taking drugs, in the sense of consuming it, however, there is a penalty for possessing a prohibited drug in NSW. The maximum penalty for possessing a prohibited drug in NSW is up to two years imprisonment and/or $2,200 fine.

What happens if I am caught with drugs for the first time in NSW?

For minor drug possession charges, the law in NSW gives police officers the discretion to issue a fine only instead of criminal prosecution by way of a charge. A fine has the effect of no requirement to attend court and no criminal record upon the fine being paid. In contrast, a criminal prosecution by way of being charged has the effect of the requirement to attend court and face the allegations which exposes the defendant to a criminal record and imprisonment penalties if convicted in court.

If you are caught with a large quantity of prohibited drugs, you could be exposed to charges of actual or deemed drug supply which carry heavy penalties depending on the quantity of the drug(s).

Can I avoid a criminal record for drug possession?

Avoiding a criminal record/conviction for the offence of possessing a prohibited drug is certainly possibly as the law provides various avenues for avoiding a criminal record, including the option for police to issue a penalty notice fine instead of criminal prosecution. If police prosecute you with a charge of drug possession, then upon entering a plea of guilty at the first available opportunity in court, you increase your chances of getting a lenient sentence including a non-conviction section 10 (conditional release order without conviction) penalty. The penalty or sentenced you receive in court will always depend on your individual circumstances including, the evidence you produce, the quantity of the drug, your mental health, and the potential consequences of a conviction on your job and dependants. It is always recommended to get a good criminal defence lawyer to give you tailored legal advice and strong representation in court in order to maximise your chances of getting the best possible outcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.