Drug Possession Charges
Clear advice on penalties, diversion programs and defences for NSW possession charges.
Possessing a prohibited drug is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW), and covers having any quantity of a prohibited drug in your custody or control, whether on your person, in a bag, vehicle or home. Unlike supply offences, possession does not require any intention to sell or share the drug, and even a small, personal-use quantity is enough to found a charge, though the amount and type of drug found strongly influence how the matter is dealt with.
NSW has increasingly moved towards diversion and treatment-focused options for straightforward possession matters, particularly where the quantity is consistent with personal use and the person has no significant prior record. Cautions, referrals to the Magistrates Early Referral Into Treatment program, and non-conviction outcomes are all realistic possibilities depending on the specific circumstances, meaning the way a possession charge is handled from the outset can make a substantial difference to the outcome.
At the same time, possession charges are not always straightforward. Disputes commonly arise over whether the accused actually knew the drug was present, whether they had the necessary degree of control over it, and whether the search that led to its discovery was lawfully conducted. Each of these issues can provide a genuine basis to contest the charge rather than simply proceeding to a plea.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Possess prohibited drug (s10 Drug Misuse and Trafficking Act 1985) | 2 years imprisonment and/or a fine of 20 penalty units | Dealt with in the Local Court. First-time, small-quantity matters are frequently resolved with a caution, a diversion program referral, or a non-conviction outcome under section 10 of the Crimes (Sentencing Procedure) Act rather than a recorded conviction. |
| Possess prohibited drug — subsequent offence | 2 years imprisonment and/or a fine of 20 penalty units | The maximum penalty is unchanged, but courts have less scope to grant a caution or non-conviction outcome where a person has one or more prior possession or drug-related convictions. |
| Possession of drug paraphernalia or equipment | Fine, dealt with under related provisions | Often charged alongside a possession offence where items such as pipes or scales are located during the same search, and generally attracts a lesser penalty than the possession charge itself. |
Possible Defences
Ways this charge can be challenged
Lack of knowledge
Possession requires that the accused knew, or was aware of the likelihood, that the substance was a prohibited drug and that it was present in the place where it was found. Where a drug was left by another person, found in a shared vehicle or share house without the accused’s knowledge, or otherwise present without their awareness, the offence is not established.
No custody or control
Beyond mere knowledge, the prosecution must prove the accused had actual custody or control over the drug. Where several people had equal access to a location — such as a shared car, room or bag — and the evidence cannot establish which individual actually controlled the drug, this element may not be able to be proven against any one person.
Unlawful search
Police search powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) are subject to specific legal requirements, including reasonable suspicion for a search without a warrant. Where a search that led to the discovery of a drug was not lawfully conducted, an application can be made to have the resulting evidence excluded, which can be fatal to the prosecution case.
Honest and reasonable mistake
Where a person genuinely and reasonably believed a substance in their possession was something other than a prohibited drug — for example, believing it to be a legal supplement or medication — this mistaken belief, if honestly and reasonably held, can provide a defence to the charge.
What Happens Next
The Local Court process
- 01
Following the discovery of a suspected prohibited drug, police may deal with the matter by way of a formal caution for eligible first or second-time offenders, or by issuing a court attendance notice requiring an appearance at the Local Court.
- 02
At the first mention in the Local Court, a plea of guilty or not guilty is entered. This is also the point at which a referral to a diversion program, such as the Magistrates Early Referral Into Treatment program, may be raised where the person has an underlying substance use issue.
- 03
If a not guilty plea is entered, the prosecution serves its brief of evidence, including the certificate analysis confirming the substance and details of how it was located, and the matter is listed for a defended hearing.
- 04
At a defended hearing, the prosecution must prove beyond reasonable doubt that the substance was a prohibited drug and that the accused knowingly had custody or control of it, and the defence can challenge the legality of the search and the sufficiency of the evidence on these elements.
- 05
If a guilty plea is entered, or the charge is proven at hearing, the matter proceeds to sentencing, where the court considers the type and quantity of drug, the accused’s record, and evidence of rehabilitation or treatment before deciding on a caution-equivalent outcome, a non-conviction, a fine, or another penalty.
- 06
Where a diversion program is completed successfully prior to sentencing, this is taken into account by the Magistrate and can support an application for a non-conviction outcome.
Frequently Asked Questions
Common questions
Imprisonment is available as a maximum penalty but is very rarely imposed for a first, small-quantity possession offence. Most first-time matters are resolved by way of a caution, a diversion program, a fine, or a non-conviction outcome, particularly where the person has no significant prior record.
MERIT is a voluntary, pre-sentence program available in most NSW Local Courts that connects eligible defendants with drug and alcohol treatment while their matter is before the court. Successful participation is taken into account at sentencing and can support a more lenient outcome, including a non-conviction result in appropriate cases.
Police have discretion to issue a formal caution for a first or second minor possession offence involving a small quantity, in place of a court attendance notice. Eligibility depends on the type and amount of drug, the person’s record, and the circumstances of the detection, and is decided by police at the time.
Simply being present where a drug is found is not enough to establish possession — the prosecution must prove you knew of its presence and had custody or control over it. Where multiple people had access to a shared space, this can be a genuine basis to contest the charge.
Yes. If a search was conducted without the reasonable suspicion or other legal basis required under the Law Enforcement (Powers and Responsibilities) Act 2002, an application can be made to exclude the drug evidence obtained as a result, which can significantly weaken or defeat the prosecution case.
A recorded conviction can affect visa applications for overseas travel, certain professional licences, and employment that requires a clean criminal record check. This is one of the main reasons a non-conviction outcome or diversion pathway is worth pursuing wherever the circumstances allow it.
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