Use/Self administer a prohibited drug

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Use/Self administer a prohibited drug

A person can be charged with use/self-administer a prohibited drug if they swallow, snort, inject, smoke, ingest or otherwise consume prohibited drugs. They can also be charged if they are caught attempting to do any of these things.

Case law/Jurisdiction
An offence of use/self-administer a prohibited Drug is an offence which is to be dealt with in the Local Court

Oftentimes in self-administer charges where there is no drug for analysis the prosecution may seek to rely on any admission made by the accused in the attempt to prove the charge. For this reason, it is very important to ensure no hearsay is allowed in the proceedings. If you do make admission and they are not hearsay this may be used in evidence.

The Law

The offence of Use Prohibited Drug is referred to as ‘Self-administration of prohibited drugs’. It is contained in section 12 of the Drug Misuse and Trafficking Act 1985 (NSW) and states:

A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.

Nothing in this section renders unlawful the administration or attempted administration by a person to himself or herself of a prohibited drug which has been lawfully prescribed for or supplied to the person.

What must the prosecution prove?

Since self-administer 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 self-administer a prohibited drug.

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

  • That you administered or attempted to administer a substance;
  • That substance was a prohibited drug; and
  • That you administered or attempted to administer the substance to yourself.

If you are charged with the offence of SELF-ADMINISTER prohibited drug what are your options?

National Criminal Lawyers have been successful in defending a number of self-administer 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 self-administer prohibited drug charges.

NCL offer the following options for those who have been charged with self-administer 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. This is the same as the offence of Possess Prohibited Drug.

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.

Defences

Some of the possible defences available for those charged with self-administer prohibited drug can include:

  • To argue that you were not administering or attempting to administer the substance to yourself (although, it is still an offence to be in possession of a prohibited drug, or to administer or attempt to administer a drug to someone else);
  • To argue that the substance was not a prohibited drug;
  • To show that you have a lawfully obtained script for the drug; or
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”.

Statistics

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 Self- Administer Prohibited drug 60% 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 client’s car was parked outside Panthers in Penrith when police officers pulled up near his car and conducted a stop and check believing that they had the power to do so. Police alleged he swallowed a prohibited drug before they were able to search his vehicle. The search found only a satchel but no amount of drugs. He was arrested and charged with self-administer a prohibited drug. Our senior lawyers argued that the police acted outside their lawful powers and could not establish the charge. These arguments were successful. The charges against our client were dismissed.

Another client was found injecting a prohibited drug at a music festival. He pleaded guilty to use prohibited drug. In the preparation of his sentencing case we are gathering character references and tendered a letter of apology. The outcome was a s10 no conviction recorded on the condition that he enter a good behaviour bond.

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 Use Prohibited Drug offence our Team at 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.

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