Home > Possession of Drugs NSW

Possession of Drugs NSW

Penalties for Drug Possession

Penalties for drug possession attract up to a 2-years imprisonment sentence in NSW, or a $2,200 fine, or both. This includes a criminal conviction.

The maximum sentence for possession of drugs is rarely imposed. A conviction for possession of drugs NSW offence can be avoided even after pleading guilty to it in court if the court imposes a section 10 penalty on your sentence.

Drug possession penalties in NSW include a section 10 non-conviction explained below.

Drug Possession in NSW

There are various types of drug possession penalties in NSW, including a section 10 or Conditional Release Order non-conviction penalty, which can be imposed after pleading guilty to a charge of possessing a prohibited drug in NSW.

Getting a section 10 drug possession penalty on sentence for drug possession charges in NSW will result in no criminal record against you.

Those facing second or first-time drug possession charges in NSW do not automatically get a section 10 non-conviction in court. To achieve section 10 for drug possession charges, it requires solid and thoughtful preparation tailored around your case and not a generic approach. It’s important to have an in-depth understanding and knowledge of drug possession laws, the court processes, and familiarity with Judges and Magistrates.

For accurate tailored advice, it’s recommended to speak to a drug possession lawyer.

Some main factors the Magistrate or Judge will consider when deciding whether or not to give a section 10 sentence for drug possession charges includes the following:

Your good character.
Your age and health.
Your mental illness if any, and if so, whether it contributed to you committing the offence.
The absence of having a prior criminal record.
Trivial nature of the offence.
Any extenuating circumstances of the offence.
Anything else the court considers proper, including the impact a conviction will have on your job, and the flow-on effect of that on anyone else who relies on your income.

Drug Possession Charges NSW | What is Drug Possession?

Drug possession Offences carry heavy criminal penalties in NSW, including criminal conviction and up to 2 years imprisonment, according to section 10 and section 21 Drug Misuse and Trafficking Act.

Drug possession definition: the definition of ‘possession’ means to knowingly have it in your custody or under your physical control to the exclusion of others not acting in concert. This can include ‘de facto possession’ where it’s knowingly located somewhere else where you intend to (and in fact do) exercise dominion and control over it.

What does ‘physical custody or control mean’? Having physical custody means to have it in your immediate physical custody where you exercise exclusive control over it. For example, where you have the drugs on you, including your hands or pocket.

Common Defences to Drug Possession? Not knowing it was there is an available defence to drug possession offences. But forgetting that it was there is not a defence.

Definition of ‘Prohibited Drug’

A prohibited drug includes Cannabis, MDMA or ecstasy, cocaine, Amphetamine, Methylamphetamine, and other drugs listed in schedule 1 of the Drug Misuse and Trafficking Act.

How do you Win a Drug Possession Case?

To beat a drug possession charge, there are four main ways to avoid a criminal record for drug possession charges in NSW:

Dismissal because of a ‘not guilty’ verdict in court.
Mental illness dismissal because you’ve been diverted away from the criminal justice system under a s32 (now called s14) application under a mental impairment.
Section 10 dismissal or Conditional Release Order non-conviction sentence is imposed even after pleading guilty.
You’ve paid a penalty notice fine for drug possession, if issued by police, which results in no criminal charge.

Sentence for Drug Possession & Drug Possession Sentencing Guidelines

The Judicial Commission of New South Wales have recorded a total of just over 6,000 cases over period September 2018 to March 2019, each receiving a variety of drug sentencing and penalties from section 10 non-conviction to imprisonment.

For period between September 2018 to March 2019 the below table shows the various types of Australian drug penalties imposed by the Local Court across 6,151 people guilty of drug possession:

Average Jail time & sentences for drug possession charges in NSW
Penalty Type	Percent	Cases
S10(1)(a) dismissal non-conviction	5.4%	333
S10(1)(c) Discharge	0	0
Conditional Release Order non-conviction	26.6%	1634
S10A with conviction	4.2%	256
Fine with conviction	51.1%	3143
Community Correction Order	6.1%	373
Intensive Correction Order	0.7%	41
Imprisonment	1.3%	80

Fines for Drug Possession in NSW

Since 2019, a $400 on the spot penalty notice fine can be issued by police for possession of small quantities of prohibited drugs in New South Wales under schedule 4 of the Criminal Procedure Regulation 2017 (NSW). As from 29 February 2024, a recipient of an on the spot fine for drug possession will not be required to pay the fine if a drug health intervention program under the Early Drug Diversion Initiative is completed in full satisfaction of the fine. The drug program is provided by or on behalf of the NSW Health.

When Can an On-The-Spot Penalty Fine Be Issued for Drug Possession?

An on-the-spot fine for drug possession can be issued by police if:

You possess a prohibited drug; and
The drug is MDMA (Ecstasy) in capsule form weighing no more than 0.25g; or
The drug is MDMA (Ecstasy) in any other form weighing under 0.75g; or
Any other prohibited drug weighing no more than the ‘small quantity’ for that drug.

This applies whether or not it’s a first time drug possession charge offence in NSW.

Do Police Have to Issue a Fine for Drug Possession Offences?

Section 333 Criminal Procedure Act 1986 (NSW) gives police the discretion to issue an on the spot fine in the form of a penalty notice to anyone who commits a ‘penalty notice offence’. If you pay the fine, you will not be required to attend court, and you will not receive a criminal record.

Police do not always have to issue an on-the-spot fine. They may decide to charge you in the form of a ‘Court Attendance Notice’, requiring you to face the charge in court. This then exposes you to heavy penalties, including a conviction and imprisonment, unless the court imposes a s10 non-conviction sentence.

Paying the fine puts an end to the matter, however, if you refuse to pay the fine and dispute it, you can court-elect the penalty notice. Court electing the fine will require you to attend Court where you can either plead guilty or not guilty. If guilty, you’re exposed to heavy penalties, including a conviction and imprisonment, unless the court imposes a s10 non-conviction.

An on-the-spot fine cannot be issued by police if the drug is cannabis leaf. However, if someone is caught with cannabis, a police officer has the discretion to give you a caution under the cannabis cautioning scheme.

Schedule 4 Criminal Procedure Regulation 2017 (NSW) contains a list of all the penalty notice offences, including drug possession.

While police have a discretion to issue a fine for drug possession offences committed by members of the community, police are still taking majority of people through the courts for low level drug possession when there is the option of issuing a fine only.

Here are the statistics for low-level possession offenders who could have been issued a fine only, but are charged by police instead for period between 29 February and 11 August.

Cannabis: 98.87% are charged.
Cocaine: 77.27% are charged.
Drug implement: 89.77% are charged.
GHB: 99.45% are charged.
Heroin: 97.61% are charged.
LSD: 78.57% are charged.
MDMA (ecstacy): 72.18% are charged.
Methyl/Amphetamine: 96.04% are charged.
NPS (synthetic cannabis): 80% are charged.
Steroid: 98.72% are charged.
Pharmaceutical drug: 98.54%
Other drug: 91.10% are charged.

Drug Possession Defences

You will be found ‘not guilty’ to possessing prohibited drugs if:

The drugs were found as a result of an illegality by police, including illegal search or illegal arrest.
You didn’t know the drugs were there, nor were you aware of the likelihood of its existence there.
Where the drugs were discovered by police in a common area such as home or car where people other than you had access to it. This defence will succeed if there is a reasonable possibility that someone other than you had custody or control of the drugs to the exclusion of all others not acting in concert.
The prosecution cannot prove that the alleged substance is a prohibited drug under schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW).
You had possession of a minute trace or amount of a prohibited drug.
You had possession of the drug due to Duress or Necessity.

What Must Police Prove in Drug Possession Offences?

To prove this offence against you, police must prove each of the following elements beyond reasonable doubt:

The substance found is a ‘prohibited drug’ or plant under the law; and
You had its custody or control, with the intention to be able to exclude others not acting in concert; and
You either knew or at least believed there was a real chance that the prohibited drug was there. The prosecution is not required to prove that you knew it was the particular drug found, only that you knew or were aware of the likelihood of the existence of a drug.

If you’re looking for personalised advice, we strongly recommend that you contact a lawyer for drug possession.