Drug possession

Drug possession

It is against the law to use, possess, cultivate or traffic a drug of dependence.

The penalties for using and possessing small quantities of illegal drugs are treated less seriously than for trafficking and cultivating drugs. Importing or exporting drugs is an offence under Commonwealth law.

Drugs of dependence

The more common drugs of dependence are:

  • cannabis (marijuana)
  • heroin
  • amphetamines (speed)
  • cocaine
  • LSD
  • MDMA (ecstasy).

There are long lists of the kinds of drugs that are prohibited in the Drugs, Poisons and Controlled Substances Act 1981.

Possession of an illegal drug

Possession is one of the most common drug offences. Possession means having a drug on you or in a house or property you occupy. This includes cannabis growing anywhere on the premises. You can be charged with possession if drugs are found in a car you own or you are driving.

Police caution

If you are caught with a small quantity of cannabis or heroin and it is your first offence, you will usually get a warning (caution) instead of being charged with the offence. The police informant makes this decision. You will have to agree to have drug counselling and to attend a drug treatment centre. If you do not go along as agreed, you may be charged by police later.

For the police to prove a charge of possession in court, you must have known that the drug was there and have intended to possess it. Get legal advice before being interviewed by police.

Going to court for possession

Cannabis is a drug of dependence and these drugs are illegal.

Quantities of cannabis are defined as:

  • small quantity – up to 50 grams
  • traffickable quantity – 250 grams or over, or 10 plants
  • commercial quantity – 25 kilograms or over, or 100 plants
  • large commercial quantity – 250 kilograms or more, or 1000 plants

Whether you are guilty depends on the exact facts and circumstances of your case.

Note: if the police charge you with possession of cannabis, they may also charge you with use of cannabis. Use includes smoking, inhaling fumes, injecting or swallowing an illegal drug. The police can charge you if they saw you using or trying to use the cannabis that was in your possession. They can also charge you if they did not see you using but you admitted to using it.

It is still an offence to possess a quantity over 50 grams and under 250 grams. It is more serious to have over 50 grams but not necessarily considered a traffickable quantity.

If you have been charged with possessing more than 250 grams of cannabis or more, the police may have also charged you with trafficking cannabis. If you have been changed with trafficking cannabis, speak with a lawyer.

What does the prosecution have to prove?

The prosecution must have evidence that an offence occurred. For the offence of possession of cannabis, the police have to prove all of the following:

  • the offence occurred at a certain time and place
  • you are the offender
  • you had a substance in your possession
  • the substance was an illegal drug.

Your options at court

You have three options at court:

Possible defences

You may have a defence if:

  • the substance was not cannabis
  • the substance was not in your possession.

If the police found the substance in your purse, pockets, house and car or anywhere you have control over, the magistrate will treat this substance as being in your possession unless you can prove otherwise.

Can I adjourn the hearing?

You can ask the magistrate for an adjournment if you want to:

  • go into the diversion program
  • see a private lawyer.

Adjournments are hard to get for any other reason. The magistrate may say no.

Penalties

If you are found guilty of cannabis possession the magistrate may give you a fine. This depends on the amount of cannabis you pleaded guilty to possessing. If you pleaded guilty to possessing up to 50 grams of cannabis the magistrate could fine you up to five penalty units.

If the police also charged you with using cannabis, and the magistrate found you guilty, the magistrate could fine you up to five penalty units. This is on top of the penalty units for the possession charge.

If you were charged with possessing other illegal drugs, such as heroin, cocaine or ecstasy you can be fined up to 30 penalty units. You could also be sent to jail for up to one year.

You may need to convince the court that you did not possess the drug to sell, particularly if caught with a large quantity of the drug.

The magistrate can also choose to place you on an undertaking to behave well for a certain amount of time. The magistrate may attach some conditions such as requiring you to get drug counselling and treatment.

In deciding what penalties to give, the magistrate looks at:

  • how serious your offence is
  • if you have been found guilty of similar offences before
  • whether you have a drug addiction
  • what else is happening in your life.

Note: If charged with possessing a large quantity of an illegal drug you may have to make the court believe that you did not possess the drug in order to sell (traffick) the drug.

Court support services

Courts recognise that people who are addicted to illegal drugs need help and support to overcome this. If the magistrate believes that you need access to treatment for drug addiction instead of punishment, they may refer you off to get help from the Magistrates’ Court referral and evaluation for Intervention & Treatment (CREDIT)/Bail support program or the Court Integrated Services Program (CISP).

What else might happen if I am found guilty?

Forfeiture: If the police seized the cannabis, the police prosecutor will apply to the court for a forfeiture order. This means that the police will not return the cannabis to you.

Criminal record: What happens in court goes in your criminal record. The court and the police can see your criminal record. Sometimes they can let other people know what is in your criminal record. For example, a criminal record, especially with convictions, may make it harder for you to get some jobs or get visas to some countries.

Can I appeal the magistrate’s decision?

If you do not agree with the decision you can appeal to the County Court. You have 28 days to do this. Get legal advice before you decide. You could get a higher penalty.

How do I pay a fine?

You can pay the fine at any Magistrates’ Court. Go to the court counter and ask the staff for help.

Let the magistrate know if you might have trouble paying the fine. There are options. You can ask the magistrate to:

  • make a plan for you to pay bit by bit
  • give you community work instead of the fine.

If you do not pay, the court can issue a warrant for your arrest.

Drug trafficking

You could be charged with trafficking drug of dependence if you are caught:

  • with a large quantity of the drug
  • preparing (such as dividing the drugs into smaller packages) or manufacturing a drug
  • selling the drug
  • buying drugs for a friend.

Penalty for trafficking

The penalties are much higher for trafficking an illegal drug. They depend on the quantity you have and how old you are.

The maximum penalty for an adult is;

  • 15 years jail and/or a fine of up to 1,800 penalty units, or
  • 25 years jail and/or 3,000 penalty units for trafficking a commercial quantity of an illegal drug.

The maximum penalty for a person under 18 years old is 20 years in jail and/or a fine of up to 2,400 penalty units. .

Get legal advice before being interviewed by police.

Cultivation

Cultivation is the offence of growing narcotic plants. These are cannabis, opium or cocoa plants.

The maximum penalty depends on whether you are found guilty of trafficking as well. These are indictable offences.

If you are charged with cultivation get legal advice before being interviewed by police.

Get help

Find out how you can get help with criminal offences.