Regardless of the intended use or purpose of a drug, any unauthorised possession of an illicit substance can lead to a criminal conviction, however, as the act indicates, there are some exceptions.

What the law states

Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) states that:

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

The exceptions to subsection (1) are outlined in section 10(2):

(2) Nothing in this section renders unlawful the possession of a prohibited drug by:

(a) a person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act1966,

(b) a person 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 prohibited drug is for the purpose of scientific research, instruction, analysis or study,

(b1) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA,

(c) a person for or to whom the prohibited drug has been lawfully prescribed or supplied, or

(d) a person who:

(i) 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

(ii) has the prohibited drug in his or her 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.

Example of this offence

A common example of this offence is being caught with a small amount of ecstasy in your pocket by a police investigation dog in a nightclub.

Before which court will my matter be heard?

Possession of drugs falls under Part 2, Division 1 of the Drug Misuse and Trafficking Act 1985 (NSW). This means that this offence is considered a summary offence, and is heard in the Local Court.

Defences

Defences applicable to this offence include but are not limited to:

– necessity
– duress

Section 35A of the Drug Misuse and Trafficking Act 1985 (NSW) outlines a further defence, that it is not illegal to possess or manufacture a prohibited substance if the substance is contained in a product where the substance cannot be readily extracted, or in a product not for human consumption, or if the substance is possessed for the purpose of its disposal as waste or its destruction.

Penalties

The maximum penalty for possession of prohibited drugs is 2 years imprisonment or $2200 or both.

How can Prima criminal lawyer help you?

Criminal lawyers are experienced in representing people who have been charged with possession of a prohibited drug. They will advise you on your chances of successfully defending your matter and thus being found ‘not guilty’. If you are pleading guilty, they will represent you at court to help minimise the punishment you receive.

If the Police’s case is weak against you, it may be possible to write to them and have them withdraw the charges against you. There are severe imprisonment terms which can be ordered by the Court and thus it is important that you seek advice from a criminal lawyer.

Author Bio: Emmanuel Apokis has many years experience in Criminal Law working with the experienced Criminal Lawyers at Prime Lawyers in Sydney.

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