It has been reported that the NSW Government is considering a new approach to penalties for the possession of small amounts of an illicit drug for personal use, following recommendations for drug law reform arising from an inquiry into the use of the drug ice along with the spate of deaths linked to drug use at music festivals.
A spokesperson for the Government has said the plan was not to “decriminalise” possession of illicit drugs. Though, as acknowledged by Greens MP David Shoebridge: “these are modest changes, far from full decriminalisation, but if they do become law they will reduce unnecessary and aggressive policing of minor drug offences,’ and attempt to rebalance civil rights.
At present, the penalties under the Drug Misuse and Trafficking Act 1985, unlike other offences, vary based on the drug type and the amount present rather than the perceived ‘seriousness’ of the drug. These quantities are based on weight alone and the purity or concentration of the substance is not taken into account.
Accordingly, the severity of penalties increases incrementally as the amount increases, as defined in Schedule 1 of the Drug Misuse and Trafficking Act as small, trafficable, indictable, commercial and large commercial quantity.
Per section 10 of the Drug Misuse and Trafficking Act, it is an offence to possess a prohibited (illicit) Drug. This offence carries a penalty of a maximum penalty of imprisonment for 2 years and/or a fine of $2,200.
If you are charged with possession of a prohibited Drug, the prosecution will have to prove beyond reasonable doubt that:
There are a number of defences to this offence, including if the prohibited drugs are found in a shared environment and the Prosecution cannot prove the exclusive possession.
The below table highlights the quantity classifications for some commonly used drugs:
|Quantity||Cocaine||Methylamphetamine (‘Ice’)||Ecstasy / MDMA||Heroin||Psilocybin (‘Magic Mushrooms’)||Codeine|
|Small||1 g||1 g||0.25 g||1 g||0.04g||5 g|
|Traffickable||3 g||3 g||0.75 g||3 g||0.15 g||15 g|
|Indictable||5 g||5 g||1.25 g||5 g||0.25 g||25 g|
|Commercial||250 g||250 g||125 g||250 g||25 g||2.5 kg|
|Large Commercial||1 kg||500 g||500 g||1 kg||100 g||10 kg|
There is also an alternative available to Police to issue a penalty notice (commonly known as on-the-spot fine), per section 333 of the Criminal Procedure Act 1986 (NSW). ‘Penalty Notice Offences’ are outlined in Schedule 4 of the Criminal Procedure Regulation 2017 (NSW), of which ‘possession of a drug’ per section 10 of the Drug Misuse and Trafficking Act is. This may apply provided the prohibited drug in possession is not cannabis leaf and:
If these circumstances are present, Police may issue a fine of $400.
However, it is important to note that although the police ‘can’ issue a penalty notice, they do not have to – it is solely at their discretion.
As noted above, the possession of Cannabis is not covered by Penalty Notice Scheme. Rather, it has a separate function under the Cannabis Cautioning Scheme, where a police officer has the discretion to issues a warning rather than a Court Attendance Notice or Penalty Notice where a person is found in possession of cannabis.
A warning may be given if:
Again, it is important to note that although the police ‘can’ issue a penalty notice, they do not have to – it is solely at their discretion.