Possession Of Prohibited Drugs in New South Wales
Possession of a Prohibited Drug
Possession of a prohibited drug in New South Wales is a criminal offence which will generally mean that a person arrested for such an offence will have to appear before a Local Court to answer the charges. Possession of a prohibited drug is a serious offence which can attract very serious penalties including up to 2 year in prison.
Just like any other criminal offence the police prosecution must be able to substantiate the elements of a possession charge in order for a Court to find a person guilty of such an offence. Whilst there are many different issues that can arise from a prohibited drug possession charge there are some basic elements which must be proven beyond a reasonable doubt in order for a person to be found guilty of this criminal act, these elements include:
- that a person was in the “custody” or “control” of a prohibited drug; and
- that the person had “knowledge” that the were in custody or control of the prohibited drug.
If the police prosecution can prove beyond a reasonable doubt that these elements of the charge exist then a Court will find a person guilty of such a possession charge.
Elements: Custody or Control
In order to establish the element of “custody” or “control” the prosecution must be able to prove to the Court beyond a reasonable doubt that the accused had control over the prohibited drugs whether it be on themselves, in their motor vehicle or in their home.
However, it is important to note that just because a person may own or rent a motor vehicle or home where prohibited drugs were found does not mean that the person had “custody” or “control” over the prohibited drugs. For example, if flatmate “A” knows that flatmate “B” has drugs hidden in their room then flatmate “A” is not guilty of possession just because they know that flatmate “B” has custody or control of the prohibited drugs.
So what exactly is meant by the terms “custody” or “control” in relation to possession of a prohibited drug:
- CUSTODY: this means that a person has immediate physical possession of the prohibited drug which is usually the case when a person is found to have such prohibited drugs in their pocket, wallet, pants or somewhere on themselves where they have immediate physical access.
- CONTROL: this means that a person has the ability or right to take particular action with the prohibited drug such as consumed it, sell or supply it or any other controlling type of action that they have the ability to perform.
It must be understood that the elements surrounding “custody” and “control” do not have to be vast rather a very small or momentary amount of “custody” and “control” only needs to be established to substantiate this element of the charge. For example, a group of friends may be passing a joint around between themselves and it would be enough to prove “custody” and “control” if one of the persons was passed the joint and immediately then passed it onto someone else.
A further element which must be proven beyond a reasonable doubt by the police prosecution is that the accused person must have had knowledge that they had a prohibited drug in their custody and control which was a prohibited drug or likely to have been a prohibited drug.
It is not good enough for the prosecution to prove what an average reasonable person would have believed in the same circumstances instead the prosecutors test is to prove that the accused person actually had “knowledge” of the prohibited drugs. Depending on the circumstances it can be inferred that there was “actual knowledge” by the accused and this can get the prosecution across the line in proving the knowledge element of prohibited drug possession.
An obvious example of actual knowledge being proven through an inference is where the accused is found to have prohibited drugs on themselves then this is a very common instance where the Court would infer that the accused had actual knowledge that the prohibited drug was in their custody and control.
Another example where the Court may infer that the accused had actual knowledge is where prohibited drugs have been found in a secret or private part of a car or house where the accused would have been the only person to have knowledge of the prohibited drugs in that particular space.
Other Common Drug Possession Issues
Each prohibited drug possession case will be different from the next but it is extremely important that an experience criminal drug lawyer has the opportunity to analyse the charges laid and assess the facts of the case. Often we see police lay prohibited drug possession charges where the following types of issues exist:
Where prohibited drugs have been left at another persons property then the owner of the property may have a defence to possession of the prohibited drugs even if they had knowledge that the drugs were left there by someone else.
In the case of Solway v R (1984) 11 A Crim R 449 a resident of a home that was raided by police was charged with possession of a prohibited drug, namely marijuana, which had been left in a bathroom cupboard after a party had taken place at the residence. The owner of the residence admitted that he knew that the prohibited drugs were there and that he had planned to dispose of those prohibited drugs at a later time. Despite having knowledge of the prohibited drugs the accused person was found Not Guilty by a Court because he did not lay claim to the marijuana and subsequently had not exercised any control over the prohibited drugs. The element of “knowledge” on its own was not enough to substantiate the charges of possession of the prohibited drugs.
The situation has occurred in the past where police have searched and found prohibited drugs in a residence which is occupied by several housemates. It should be known that it may not be inferred by a Court that one specific housemate was the person that had possession of the prohibited drugs especially when a reasonable inference could be made that the prohibited drugs could belong to any of the other housemates who had access to the section of the house where the prohibited drugs were found by the police. It will be extremely difficult for police to substantiate the charges and pursue a conviction if no one makes a statement to the police claiming ownership of the prohibited drugs.
In the case of Filippetti v R (1984) 13 A Crim R 335 we saw a very similar example of this “shared house” issue where 6 people were living in a 3 bedroom house which was searched by police who found marijuana in the common living area which was frequented by all of the housemates on a daily basis. The police decided to charge one of the male residents of the house and he was convicted by a Court for possession of prohibited drugs. However, the convicted man decided to appeal his conviction and the Court of Criminal Appeal decided to overturn the conviction and formed the opinion that it was important that the prosecution prove beyond a reasonable doubt that the accused had “exclusive physical control” of the prohibited drugs and that this was too difficult to prove since there were several other people who had free and equal access to the common living area in which the prohibited drugs were found.
The Court of Criminal Appeal made it clear that the prosecution must rule out any other reasonable explanations where there is a possibility that the prohibited drugs could have been accessed and/or used by any of the other housemates at the residence. Therefore, the biggest issue that arose in the Court of Criminal Appeal was that it was established that there was enough reasonable doubt over whether the accused was the housemate who actually possessed the prohibited drugs. This was the basis for the overturning of the conviction and ultimately where the prosecutions case failed.
Certainly, the police could have taken the excessive steps to charge all of the housemates who lived at the residence where the prohibited drugs were found. However, the prosecution would have to prove that each and every accused person had actual “knowledge” and “control” or access to the prohibited drugs. In reality this would be extremely hard for the prosecution case to prove since it would require evidence to substantiate such elements for all of the housemates, which would basically mean that statements from all of the housemates admitting to the “knowledge” and “control” or access of the prohibited drugs.
SEVERAL PEOPLE CHARGED:
In a situation where police arrest several people over the possession of prohibited drugs then the prosecutions case must prove beyond a reasonable doubt that each and every person charged had possession of the prohibited drugs.
Problems can arise for the prosecution in such situations as the Courts are unable to presume that all the people charged had shared possession of the prohibited drugs. Without the appropriate evidence (such as admissions of possession by the accused) to substantiate the elements of the charge of possession beyond a reasonable doubt the prosecution will find it very difficult to prove their case on anyone of the accused defendants.
Despite what you may have heard, being in possession of medicinal marijuana or cannabis is still a crime and will substantiate the elements of proving possession of a prohibited drug in New South Wales. Attempting to explain to a Court that the use of the prohibited drug is for medicinal purposes will NOT be considered a defence for possession of a prohibited drug. If you can prove that the reason why you are in possession of cannabis is for medicinal purposes there this will certainly be taken into strong consideration when your matter is dealt with by a Court. It is not a defence but if may be seen as such a strong mitigating factor that the Court may not record a conviction against your name, however it will obviously depend upon all of the subjective and objective features surrounding the matter.
There is a great deal of debate within our community and in the political arena which is currently raising issues surrounding the legalisation and/or decriminalisation of cannabis for the purpose of medicinal use. It should be known that possession or any other known illegal dealing with cannabis as it stands is illegal and police will seek to prosecute offenders that is at least until parliament formally amends the existing laws.
Section 10 of the Drug Misuse and Trafficking Act 1985 – Possession of prohibited drugs
(1) A person who has a prohibited drug in his or her possession is guilty of an offence.
(2) Nothing in this section renders unlawful the possession of a prohibited drug by:
(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.
Section 21 of the Drug Misuse and Trafficking Act 1985 – Penalties
The penalty for an offence under this Division is a fine of 20 penalty units or imprisonment for a term of 2 years, or both.
*The above are maximum penalties that could be given by the NSW Local Court.
Penalties & Sentences available drug crimes in NSW include:
Section 10 – Avoid A Criminal Conviction
Under Section 10 of the Criminal (Sentence Procedure) Act 1999 the Courts have the discretion to not record a conviction on a person who is found guilty of a particular drug offence in New South Wales. Generally, the Court will only issue a Section 10 for the less serious drug matters and certain circumstances of the matter will need to be present to allow for the Courts to exercise such discretion. Often when a Court does issue a Section 10 they will also issue the defendant with a Good Behaviour Bond for a specified period of time. Contact one of our Drug Lawyers to discuss whether you may be in line to possibly obtain a Section 10 for your matter.
A Court imposed fine is probably the most common type of penalty handed down by a Court. The amount of the fine will be determined by the Judge or Magistrate and a number of factors will be taken into consideration when deciding how much the amount of the fine will be. Such factors would include the defendants employment status, their ability to pay the fine, the seriousness of the offence and whether any financial gain was made by the defendant through the offences.for less serious drug offences.
Good Behaviour Bond
The Courts have the ability to place a defendant found guilty of drug crimes on what is called a Good Behaviour Bond. This is basically where the defendant signs an undertaking to be of good behaviour by not committing any further crimes within a specified period of time. If the defendant does not commit any further crimes within the period of the Good Behaviour Bond then that bond will automatically expire at the end of the specified period. However, if the defendant does breach the Good Behaviour Bond within the specified period of time then the defendant can be brought back before the Court and re-sentenced on the same matter on which they received the Good Behaviour Bond for plus any other new additional offences they may have committed. The Court can place a person on a Good Behaviour Bond for a period of time anywhere up to 5 years from the time of sentence. The Court has the power to exercise such a Good Behaviour Bond under Section 9 of the Criminal (Sentencing Procedure) Act 1999.
Community Service Order
One particular type of non-custodial penalty that the Court often hands down is a Community Service Order, otherwise known as a CSO. Basically a Community Service Order will mean that the defendant will need to report to Probation and Parole Services who will then assess their suitability to perform certain community types of work. If the defendant is unsuitable for performing Community Service work due to being unfit or some other medical reason then this may exclude them from performing such an order which means the Court may have to consider other forms of penalties or sentences. Probation and Parole Services may also recommend that the defendant perform specific self-help programs to help them overcome problematic issues they may have. The Courts have the power to exercise a Community Service Order under Section 8 of the Criminal (Sentence Procedure) Act 1999.
Suspended Jail Sentence
A Court can issue a term of imprisonment however decide to suspend the period of imprisonment by placing the defendant on a Good Behaviour Bond under Section 12 of the Criminal (Sentence Procedure) Act 1999. If the defendant does not breach the Good Behaviour Bond within the specified period then they will not have to be subjected to incarceration. However, if they do breach the Good Behaviour Bond during the specified period then they may have to serve out the remainder of the period in full time custodial imprisonment. It must be noted that a Suspended Jail Sentence can only be issued by a Court where the term of imprisonment imposed on the defendant is not more than 2 years.
Intensive Correction Order
As of 1 October 2010 the Intensive Correction Order (ICO) replaced the sentence of Periodic Detention. The Intensive Correction Order is a form of punishment which is basically 1 step away from a term of full time imprisonment. A Court can only issue a sentence for an Intensive Correction Order where the term of imprisonment is less than 2 years.
A person who is sentenced to an Intensive Correction Order may have specific conditions attached to their sentence such as:
a) Reside only at a premises approved by Probation and Parole Services.
b) Be subject to random unannounced home visits.
c) Submit to searches.
d) Be subject to drug and alcohol testing.
e) Be subject to electronic monitoring.
f) Comply with curfews.
A breach of any additional conditions set by the Court could see the defendant serve out the remainder of the Intensive Correction Order period in full time custody.
A term of imprisonment is the most severe form of punishment that a Court can hand down to a defendant as it means that the person will lose all of their usual freedoms enjoyed by member of our community by being locked away in a correctional facility, otherwise known as jail or prison.
Drug crimes in New South Wales are considered extremely serious offences and most drug crimes are punishable by terms of imprisonment. The Courts will certainly assess the charges and also whether there are any other more appropriate forms of punishments other than jail however many drug crimes do carry lengthy terms of imprisonment.
Beazley Singleton Sydney Drug Lawyers
Telephone: (02) 9283 8620
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