Drug offences

Drug Possession NSW 
Frequently Asked Questions

What is the offence?

In NSW, drug possession is governed by the Drug Misuse and Trafficking Act 1985 (NSW). [1]

• The Offence: To be found guilty, prosecutors must prove beyond a reasonable doubt that you had a prohibited drug in your custody or control, and you knew it was there. [1]
   

What must police prove?

For a charge of simple possession to be successful, two primary "elements" must be satisfied: [1]

1. Custody/Control: The drug was on your person, in your belongings, or on property/premises where you had exclusive physical control.

2. Knowledge: You were consciously aware that you possessed the substance and knew it was a prohibited drug. [1, 2, 3, 4, 5]

What are the penalties?

• Maximum Penalty: The maximum penalty for simple possession is a fine of up to $2,200 and/or 2 years imprisonment. [1, 2]

• Police Discretion & Fines: For small amounts intended for personal use, NSW Police have the discretion to issue an on-the-spot Criminal Infringement Notice (Fine) rather than making you attend court. [1, 2, 3]

• Diversion: First or second-time offenders may be offered an early diversion to a health or education program instead of receiving a criminal record. [1, 2]

Will I go to Jail?

The legal consequences for drug possession in New South Wales (NSW) depend entirely on the quantity of the prohibited substance found. The law draws a strict line between personal use and an intent to sell. [1, 2]

 

1. Small Quantities (Personal Possession)

When an individual has a minor amount of a drug solely for their own use, it is classified as simple possession under the Drug Misuse and Trafficking Act 1985 (NSW). [1, 2, 3]

• Legal Classification: Summary offence (handled quickly in the Local Court).

• Maximum Penalty: Up to 2 years in prison and/or a $2,200 fine.

• Likely Outcome: Actual jail time is rare for first-time offenders. NSW Police have the authority to issue a $400 on-the-spot fine or direct the person to a health diversion program to avoid a criminal record. [1, 2, 3, 4, 5]

 

2. The Turning Point: "Deemed Supply"

In NSW, if a person carries a drug weight that exceeds a specific legal threshold, the law automatically presumes they intended to sell it. This is known as "Deemed Supply." [1, 2, 3]

Once this weight limit is crossed, the charge automatically upgrades from possession to drug supply, even if the individual claims the drugs were only for themselves. Examples of these weight limits include: [1, 2]

• MDMA (Ecstasy): 0.75 grams

• Cocaine: 3.0 grams

• Cannabis Leaf: 300.0 grams [1, 2, 3, 4]

 

3. Large Quantities (Drug Supply & Trafficking)

Possessing large amounts leads to severe indictable offences. These cases are heard in higher courts (the District or Supreme Court) and carry heavy prison sentences. [1, 2, 3, 4, 5]

• Indictable Quantities (e.g., 5g+ of cocaine): Carries a maximum penalty of up to 15 years in prison. Jail time is a very high risk. [1, 2, 3, 4]

• Commercial Quantities (e.g., 250g+ of cocaine): Carries a maximum penalty of up to 20 years in prison. A custodial prison sentence is almost certain. [1, 2, 3, 4]

• Large Commercial Quantities (e.g., 1kg+ of cocaine): Carries a maximum penalty of life imprisonment. A lengthy prison sentence is virtually guaranteed. [1, 2, 3, 4]

What defences are available?

When a person is charged with drug possession under the Drug Misuse and Trafficking Act 1985 (NSW), the prosecution must prove two main elements beyond a reasonable doubt: knowledge (that the person knew the drug was there) and exclusive control (that the drug was in their possession).

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Criminal defence lawyers typically look at the following legal defences to challenge these charges:​

 

1. Lack of Exclusive Knowledge or Control

If drugs are found in a shared area, the police must prove exactly who they belonged to.

• The Defence: If a substance is found in a communal environment—such as a share-house living room, a vehicle used by multiple drivers, or a jacket borrowed from a friend—the defence can argue that the prosecution cannot prove exclusive control.

• Legal Precedent: This is commonly referred to as the Filippetti defence, established by NSW case law, which protects individuals from being wrongly convicted for items found in shared spaces.

 

2. Unlawful Search (Illegal Evidence)

Many drug charges rely heavily on police searches. However, police must follow strict laws when stopping and searching citizens.

• The Defence: Under Section 138 of the Evidence Act 1995 (NSW), if police conduct a search without a lawful "reasonable suspicion," the search is considered illegal.

• The Outcome: A lawyer can apply to the court to have the drug evidence excluded. If the judge or magistrate agrees that the search was unlawful, the evidence is thrown out, and the prosecution's case generally collapses.

 

3. Honest and Reasonable Mistake of Fact

This defence applies when a person genuinely did not know they were carrying an illegal drug.

• The Defence: The individual must show that they held an honest and reasonable belief that the substance was legal, and if that belief were true, no crime would have been committed.

• Example: A person buys a package of imported herbal tea or legal wellness powder, completely unaware that it contains a chemically prohibited substance.

 

4. Lawful Authority or Valid Prescription

It is not an offence to possess certain restricted substances if you have a legal medical right to do so.

• The Defence: If the substance found is a prescription medication—such as medical cannabis, ADHD medication, or strong prescription painkillers—providing evidence of a valid prescription from an Australian medical practitioner completely resolves the charge.

 

5. Duress or Necessity

These are emergency legal defences used when an individual was forced to break the law due to external threats.

• Duress: The person possessed the drug because they or their family were facing immediate, credible threats of serious physical harm or death.

• Necessity: The person held the substance to prevent an immediate, life-threatening emergency (for example, taking drugs away from someone to prevent an imminent overdose).

 

Rebutting "Deemed Supply" (For Larger Amounts)

If a person is caught with an amount that triggers an automatic dealing charge (Deemed Supply), a lawyer can argue that the drugs were intended strictly for personal consumption. If successful, the severe supply charge is downgraded back to a minor possession offence.

What Happens in court?

What happens on the very first court date?

The first court date is called a Mention. Its main purpose is to let the magistrate know how you intend to plead. You will not usually have a full trial or final sentencing on this day.

 

What are my options for entering a plea?

You or your lawyer must tell the court one of two things:

• Plead Guilty: You admit to the offence. The magistrate will often sentence you on the spot, or adjourn (postpone) the case to a later date if you need time to gather character references or medical reports.

• Plead Not Guilty: You deny the charge or intend to use a legal defence. The magistrate will set a future court date for a Hearing, where witnesses will speak and evidence will be formally argued.

 

Where will the court case take place?

Simple drug possession is a summary offence. This means it is dealt with entirely in the Local Court by a magistrate sitting alone. There is no jury present.

 

What should I wear and how should I behave?

The court expects a high level of respect. You should:

• Dress in neat, conservative business attire (e.g., a collared shirt and trousers).

• Arrive at least 30 minutes before your scheduled time to find your courtroom on the noticeboard.

• Turn off your mobile phone before entering the courtroom.

• Bow your head slightly toward the magistrate when entering or exiting the room.

• Address the magistrate as "Your Honour."

 

What factors will the magistrate consider when sentencing?

If you plead guilty or are found guilty, the magistrate looks at several things to decide your penalty:

• The Type and Amount: What drug it was, and exactly how much you had.

• Your Criminal History: Whether this is your first time in trouble or if you have prior convictions.

• Your Character: References from employers, family, or community members showing your normal good character.

• Remorse and Rehabilitation: Evidence that you are sorry, such as completing a drug education course or counseling program.

• Your Circumstances: Your current employment, mental health, and financial situation.

 

Is it possible to avoid a criminal record?

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Yes. In New South Wales, a magistrate has the power to dismiss the charge completely under Section 10 of the Crimes (Sentencing Procedure) Act 1999. This means you are found guilty, but the court chooses not to convict you, allowing you to walk away with a clean criminal record. This is usually conditional on your good behaviour for a set period.

How can can a Lawyer help?

 

Charged with drug supply in NSW? Contact us today for a confidential consultation.