Minor illicit drug possession could be decriminalised in NSW

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.

Possession of Prohibited (illicit) Drugs

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:

  1. You had possession of the prohibited drug;
  2. You had knowledge of the drug.

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:

QuantityCocaineMethylamphetamine (‘Ice’)Ecstasy / MDMAHeroinPsilocybin (‘Magic Mushrooms’)Codeine
Small1 g1 g0.25 g1 g0.04g5 g
Traffickable3 g3 g0.75 g3 g0.15 g15 g
Indictable5 g5 g1.25 g5 g0.25 g25 g
Commercial250 g250 g125 g250 g25 g2.5 kg
Large Commercial1 kg500 g500 g1 kg100 g10 kg

Penalty Notice Scheme

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:

  • In the case of MDMA/Ecstasy in capsule form, the amount of the drug does not exceed a small quantity; and
  • In the case of MDMA/Ecstasy in any other form, the amount of the drug is less than a traffickable quantity; or
  • With any other prohibited drug, the amount of the drug does not exceed a small quantity.

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.

Cannabis Cautioning Scheme

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:

  • The quantity of Cannabis in the possession is no more than 15 grams;
  • There is no prior record involving drugs, violence or sexual assault; and
  • The same caution for drug possession has not been given on more than 2 occasions.

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.

If you or someone you know needs legal advice or representation for a criminal law matter, contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

Written By
James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia

Reviewed By
Drew Hamilton
Drew Hamilton

Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.

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