Taking a look at drug offences and charges in NSW 

January 21, 2022

You’ve been charged with a drug-related offence – now what? We’re taking a look at drug offences and charges in NSW.

In Australia, illicit drug offences sit in the top 3 most common main offences. In fact, it’s been that way for just under a decade.

In 2021, there were almost 74,500 offenders charged with drug offences – making up about 20% of total charges. And in the 10 to 17-year old age bracket, more than 5100 offences were related to drugs.

If you’re facing drug charges, or you know someone who is, it’s important to know something about the law so you understand what is and isn’t permitted. It’s even more important to know where you can find legal help in the event you find yourself in a bit of a difficult situation. 

A quick look at the law

Here’s a snapshot of the key things that define how the NSW law applies when it comes to drugs.

  • The Drug Misuse and Trafficking Act 1985 (NSW) includes a wide range of prohibited drugs (including LSD, amphetamines, and ecstasy) along with plants (such as cannabis and opium).
  • The Act has wide coverage – usage, possession, supply and trafficking, cultivation, manufacture, aiding and abetting, and possession of drug-use implements.
  • Penalties vary according to a range of factors, including what type of drug is involved, where it was found, how much there was, why you had it, and your intention.
  • Penalties range from fines to imprisonment. 
  • Drug users face a different set of charges to drug dealers.

Police have the power to ‘stop, search, and detain anyone they reasonably suspect is in possession of drugs. This also covers a vehicle. Police can use sniffer dogs without a warrant to detect illegal drugs for general drug detection (by smell) before a search.  

Police arrest woman on drug charges

In addition to state laws, there’s also the Commonwealth Criminal Code – this is a federal law and applies across Australia. This covers trafficking, selling, cultivation, manufacturing, importing and exporting, and possession.

The main categories of drug-related offences and charges in NSW are usage, possession or trafficking. Here’s a breakdown of these categories.

  1. Drug Use

If you’ve used an illegal substance and have been arrested for it, you’ll face drug charges. The prosecution will have to prove that you used illegal drugs. Surprisingly, many arrests are made because the person has admitted to the police that they have used illegal drugs.

Even if someone shows signs of having used drugs, the onus is on the prosecution to prove they’ve taken them. Police must either get the person to admit that they took them or get a blood test to charge a person with usage.

  • Drug Possession

Drug possession falls under section 10 of the Drug Misuse and Possession Act 1985 (NSW). In this instance, the prosecution has to prove an illegal drug was in their custody or control (for example, in their house or car), and that they knew they had custody or control of it. Custody means they have it in their possession, say, in their pocket. Control means they own it and can keep or share it.

Even momentary possession – say, accepting a tablet that’s passed to them – is a chargeable offence. Again, the burden of proof falls to the police and prosecution. It is important to know that there are many forms of possession, and you could be violating the law even though you don’t think you are.

We can assist you with Legal Aid matters on the basis that you have been approved by the Legal Aid NSW for a grant of Legal Aid Assistance. You can do this by completing an Application and nominating CM Lawyers as your preferred legal representative. Click Here for more information.

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  • Drug Supply and Trafficking

If a person is in possession of large enough quantities of a prohibited substance, charges can be increased to trafficking. This means you’re considered to be someone who is supplying drugs to others.

This charge is an interesting one, in that, penalties can vary based on the amount and drug type. The type of drug and the amount will have a large impact on the type of penalty the courts will consider.

Quantities are based on weight alone and the purity or concentration of the substance is not taken into account. The severity of penalties linked to trafficking charges increases incrementally as the amount increases.

You might be surprised by what is regarded by law as a trafficable quantity. Here are some examples.


Small quantity
Trafficable quantityIndictable quantityCommercial quantityLarge Commerce quantity 
Cannabis lead30.0g300.0g1,000.0g25.0kg100.0kg
Ecstasy0.8g3.0g5.0g250.0g1.0kg
Cocaine / Heroin / Amphetamine1.0g3.0g5.0g250.0g1.0kg

Other prosecutable offences

  • Having drug equipment – say, a tablet press or a water pipe – or even instructions on how to manufacture or produce drugs 
  • Administering a drug to yourself or others
  • Forging documents, such as prescriptions.

Penalties

If found guilty on drug-related charges, the consequences can be severe – including fines, home detention, an intensive correction order, community service, or even imprisonment (including for life). Financial penalties (or fines) are calculated according to ‘units’ – each unit carries a dollar value. The more units involved in the penalty, the higher the fine.

It’s rare for one aspect – say, possession – to be the only charge a person will face.

There’s a sharp contrast between the use of illegal and mind-altering substances for recreational purposes, and ending up in a prison cell. Even a single night out experimenting with drugs could lead to jail time.

Prohibited substance charges should be treated extremely seriously. If you or someone you know are facing drug charges it is imperative to obtain legal representation to get the best outcome.

CM Lawyers can help navigate potential criminal charges and, in some cases, protect your record from these drug offences and charges in NSW. Contact Us Now.

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