At Chidiac & Associates, we provide experienced criminal defence representation to clients facing drug possession charges throughout Sydney and New South Wales. We carefully examine the circumstances in which the drugs were found and whether the Prosecution can establish that the accused knowingly possessed them.

What is Drug Possession?

The principal offence is contained in section 10 of the Drug Misuse and Trafficking Act 1985 (NSW).

Section 10(1) provides that a person who has a prohibited drug in their possession is guilty of an offence.

Possession does not necessarily require the drug to be found physically on a person's body. It may also arise where a person has control or custody of drugs located in another place.

For example, allegations may involve drugs found:

• in clothing or a bag;
• inside a vehicle;
• in a bedroom or house;
• in a locked container; or
• in another location said to be under the person's control.

Ownership of the drug is not necessarily required for possession.

Elements of Drug Possession

To establish a charge under section 10, the Prosecution must prove the relevant elements beyond reasonable doubt.

1. A Prohibited Drug Was Present

The Prosecution must establish that the substance was a prohibited drug. This will commonly involve forensic analysis identifying the substance.

2. The Accused Possessed the Drug

The Prosecution must establish that the accused had possession or control of the drug.

Evidence may include:

• where the drugs were found;
• fingerprints or DNA;
• CCTV;
• admissions;
• text messages or other communications;
• ownership or occupation of premises; and
• the circumstances of the search.

3. The Accused Had the Required Knowledge

The Prosecution must establish the relevant knowledge concerning the drug.

A person may therefore have a defence where they genuinely did not know the drug was present or did not have the necessary knowledge concerning it.

What Are the Penalties for Drug Possession?

2 years' imprisonment

or

20 penalty units

or both.

These are the maximum penalties and do not mean that imprisonment or the maximum fine will automatically be imposed.

Drug Possession Penalties at a Glance

Small Quantity Drug Possession

Certain small quantity drug possession offences may be dealt with through a penalty notice rather than requiring the matter to proceed through the ordinary court process.

The applicable penalty notice scheme provides for a $400 penalty for specified section 10 possession offences involving prescribed quantities.

Whether a penalty notice is available depends upon the particular drug, quantity and circumstances. Not every small quantity possession matter will qualify.

Drug Cautions and Diversion

Depending upon the circumstances, a person charged with drug possession may be eligible for a diversionary outcome rather than a traditional conviction and sentence.

Possible options can include:

• a cannabis caution;
• a drug caution;
• a penalty notice;
• participation in a diversion program; or
• other orders available under NSW legislation.

Eligibility depends upon factors including the type and quantity of drug, the person's age and history, and the circumstances of the offence.

Possession in a Shared Property or Vehicle

Drug possession charges frequently arise where drugs are found in premises or vehicles occupied by more than one person.

The fact that a person owns, occupies or controls a property or vehicle where drugs are discovered does not automatically establish possession.

Relevant issues may include:

• who had access to the location;
• who owned the drugs;
• who controlled the area where they were found;
• whether the accused knew the drugs were present; and
• whether there is evidence connecting the accused to the drugs.

These issues can be particularly important where drugs are discovered in a shared bedroom, common area or vehicle.

Can I Defend a Drug Possession Charge?

Being charged with drug possession does not mean that you are guilty. The Prosecution bears the burden of proving the offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not possess the drugs;
• the drugs belonged to another person;
• the accused did not know the drugs were present;
• the accused did not have the necessary knowledge concerning the substance;
• the drugs were found in an area accessible to multiple people;
• the substance is not a prohibited drug;
• the identity or quantity of the substance is disputed;
• the Prosecution evidence is unreliable; or
• there are issues concerning the legality of the search or admissibility of evidence.

The appropriate defence will depend upon the evidence in the individual matter.

Police Searches and Evidence

Drug possession charges commonly arise following searches conducted by NSW Police.

The Prosecution may rely upon:

• the drugs themselves;
• photographs;
• body-worn camera footage;
• CCTV;
• fingerprints or DNA;
• mobile phone messages;
• admissions;
• police observations; and
• forensic analysis.

The circumstances in which the drugs were located and seized should be carefully examined. In appropriate cases, issues may arise concerning the legality of a search or the admissibility of evidence obtained during the investigation.

Possession for Personal Use

Where the evidence indicates that drugs were possessed for personal use, this may be relevant to the way the matter is dealt with and the appropriate penalty.

The court may consider:

• the type and quantity of drug;
• the person's criminal history;
• previous drug offences or cautions;
• personal circumstances;
• prospects of rehabilitation;
• steps taken to address drug use where relevant; and
• whether an early guilty plea was entered.

Personal use does not provide a defence to possession, but it may be relevant to the outcome.

Drug Possession vs Drug Supply

Possession for personal use should be distinguished from possession for the purpose of supply, which is a separate and potentially much more serious offence.

Where police allege that drugs were possessed for supply, matters such as the quantity, packaging, communications, cash and other evidence may become relevant.

A person should obtain legal advice before responding to any allegation that drugs were intended for supply.

Sentencing for Drug Possession

Where a person pleads guilty or is found guilty, the court may consider:

• the type and quantity of drug;
• the circumstances of possession;
• whether the drugs were for personal use;
• the person's criminal history;
• personal circumstances;
• employment and family responsibilities;
• prospects of rehabilitation;
• remorse;
• steps taken towards rehabilitation; and
• any early guilty plea.

For less serious possession matters, the court may have sentencing options available that do not involve imprisonment.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice about your drug possession charge;
• assessment of the Prosecution evidence;
• advice concerning diversionary options;
• examination of search and seizure evidence;
• advice concerning the identity and quantity of the drug;
• advice concerning potential defences;
• representation at court;
• negotiations with prosecutors where appropriate;
• sentencing advice and submissions; and
• representation in defended proceedings.

Our approach is built on thorough preparation, practical advice and strong courtroom advocacy.