Possession of an illegal drug

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What is Possession of an illegal drug ?

Possession is one of the most common drug offences. Possession means having a drug on you or in a house or property you occupy. You can be charged with possession of drugs if drugs are found in a car you own, or you are driving.

Case law/Jurisdiction
An offence of possess prohibited Drug is an offence which is to be dealt with in the Local Court

The nature and mental element of possession were considered in the case of He Kaw The v R (1985) 157 CLR 523 which states it is for the Crown to prove the accused knew of the existence of the drug in his/her physical custody or control.

The Law

The offence of possessing a prohibited drug is contained in section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) which states that:

a person who has a prohibited drug in his or her possession is guilty of an offence.

What must the prosecution prove?

Since possess a prohibited drug is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of possess prohibited drug.

To establish possession, the prosecution must prove each of the following matters beyond reasonable doubt:

  • You had a prohibited drug in your possession; and
  • You knew it was in your possession, or you knew of its likely existence and nature; or
  • You believed that it was a drug.

If you are charged with the offence of possession of prohibited drug what are your options?

National Criminal Lawyers have been successful in defending a number of possess prohibited drug charges where the prosecution could not establish each of the elements of the offence. We have also achieved a number of non-convictions for possess prohibited drug charges.

NCL offer the following options for those who have been charged with possess prohibited drug.

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Possess Prohibited Drug can be punished with a prison sentence of up to 2 years.

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with possess prohibited drug and are experts at these hearings.


Sometimes there may exist a defence at law. Some of the possible defences available for those charged with possess prohibited drug can include:

  • Acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study; or
  • A person to whom the prohibited drug has been lawfully prescribed or supplied to; or

A person who:

  • Has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and
  • Had the prohibited drug in your possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply and/or

Is licenced or authorised to supply the drug under the Poisons and Therapeutic Goods Act 1966 (NSW);


The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:
“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Possess Prohibited drug 56% of offenders received a fine.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a possess prohibited drug charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine;
  • Section 10.

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine;
  • New Conditional release Order (CRO).

Case Studies

Our senior solicitor represented a 21-year-old client charged with possession of cocaine while walking home drunk. We successfully represented him in his sentencing hearing where the magistrate recorded no conviction on the condition that he enter into a good behaviour bond.

Another client was recently charged with possession of a prohibited substance (ecstasy) after being detected by a police “sniffer dog” which was being used as part of an organised drug operation at a Sydney Music Festival. Our senior criminal lawyer represented the client at the first appearance at the Downing centre Local Court. Having already done all the preparation work (including obtaining references, a letter of apology and preparing submissions) we were able to have the matter finalised at the first appearance by way of a non-recording of a conviction.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any drug offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

Book your first free appointment with National Criminal lawyers now.
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