In NSW there are complex laws in place to control the use and circulation of prohibited drugs in the community, with the Drug Misuse and Trafficking Act, 1985 being the basic legislation. If you have been charged with the offence commonly known as “possession”, the Police have formed the view that you have breached section 10 of that Act, because you have been found to have a “prohibited drug” in your possession.
Possession of drugs, so far as the law provides, includes having them in your clothing or bag, or in a place over which you have control, such as your car or home. Sharing a quantity of a drug can lead to all those sharing being charged with possession. This is commonly known as “joint possession”.
Prohibited Drugs are the ones listed in Schedule 1 of the Act. The list is a long one. The Police must identify the particular drug in the charge.
This article will only deal with the offence of possession. There are more serious charges that may be laid where the quantity in your possession exceeds what is known as a “traffickable quantity”. In that case, you are presumed to have the drugs for the purpose of supplying them to other people, unless you can prove you had them for personal use, and you face more serious penalties. The trafficable quantity of a drug can be very small, such as 3g of Heroin, Cocaine or Speed, .75g of Ecstasy, or 300g of Cannabis leaf.
Assuming that you agree that you were in possession of the substances, there are at this point two essential facts that the Police must be able to prove before you can be found guilty. Firstly, the identity of the drug, and then, the quantity.
As to the identity of the drug, do not presume or admit that the drug is definitely what you believe it to be. You may have acquired it from a person who said, for instance, that it was heroin, but whether it actually is heroin can only be proved by laboratory analysis.
As to the quantity, it is in your interests to have the substance weighed, so that you know whether you are facing further, more serious, charges, or just a possession charge.
WILL YOU BE LOCKED UP IN AT THE POLICE STATION OR JUST RECEIVE A COURT ATTENDANCE NOTICE (CAN)?
If you have been detained by Police for possession of prohibited drugs, the Police may choose not to lock you up in a Police cell at the police station. With the sheer number of drug possession arrests nowadays, the Police will very often choose to issue you with a “Court Attendance Notice”. A Court Attendance Notice is a written notice given to an accused person informing them of the requirement to attend court to answer a charge, or charges. Quite often, particularly at music festivals where there are hundreds of arrests in a short period of time, Police will choose this method of dealing with those arrested for possession of drugs. If this is the case, you will be automatically released from Police custody, without the need to enter into any bail conditions. Very often you will not even be taken back to the Police station for the charge procedure.
WHAT SHOULD YOU DO AT THE POLICE STATION IF TAKEN THERE?
The police should explain your rights before asking you to say anything that may be recorded and used against you. It is best to respond politely and avoid aggression, as that may expose you to further charges. The objective is to have the process completed as uneventfully and quickly as possible, and be released.
You always have the right to remain silent – that is, not to provide any information other than your name and address and date of birth – and to decline any request to be interviewed. Whether you wish to exercise that right is up to you. Generally, Lawyers say that the best course is to say nothing until you have had legal advice, and, if you are of the view that the Police will not be able to make out a case against you, or wish to get legal advice before you do say anything, you should politely maintain your silence and say you do not wish to participate in an interview at that stage.
The Police should ask whether you need to have a support person or interpreter present, and you can ask for one. You may also ask to contact a lawyer, and should be allowed to speak to him or her on the phone.
WHEN WILL THE POLICE ALLOW YOU TO LEAVE THE POLICE STATION?
There are guidelines the Police are supposed to follow as to how long they can keep you at the Police Station, and the basic rule is ‘reasonableness”. That means that the time depends on taking all the relevant factors into account, including your own conduct at the time.
Before you leave, the Police should give you copies of paperwork, including the Charge Sheet and a copy of your interview (either on disc, or a paper copy if it was taken as a written statement), and decide whether you should enter bail, and if so, what requirements or conditions will be appropriate to ensure that you attend Court to answer the charge. They will obtain a copy of your criminal record to assist in making the decision as to bail, and may ask you what security you are able to provide if bail is granted. They will also inform you of the date you will be required to appear and the address of the Court.
If the Police refuse to grant you bail, you will be sent to the nearest courthouse for your first court appearance. If the Police make this determination outside normal court opening hours, they will send you to the nearest court the next day. If you have been bail refused by the police on the weekend or public holiday, you will be taken to the nearest ‘bail court’ for your first court appearance. There, you will have an opportunity to ask the court for bail.
PREPARING FOR COURT
This is the stage at which you should take professional advice, so make an appointment to see a Solicitor as soon as possible. The solicitor should advise you, amongst other things:
- Whether you should apply for an adjournment to allow more time for the preparation of your case
- Whether you have any defence available
- Whether you should insist on having the drug weighed and analysed
- Whether you should plead “guilty” or “not guilty”, and the effect that your plea could have on any penalty
- Whether you should obtain character references
- The range of sentencing options appropriate to the facts and your criminal history
- The advantages of being legally represented
- The estimated Fees of the Solicitor to represent you at Court
The procedure at Court varies from case to case, and whether you have a Solicitor representing you. If you instruct a Solicitor, he or she will conduct the matter and you will not have to say anything unless they specifically want you to. Otherwise, if you are not represented, you will speak to the Magistrate personally.
WHAT PENALTY CAN I EXPECT?
If you plead guilty or are found guilty after a defended hearing, you face a maximum penalty for possession of $2200 and/or two years imprisonment. As an alternative to imprisonment or a fine, the Court may consider Home Detention, an Intensive Correction Order, a Suspended Sentence, or a Community Service Order, or may order you to enter into a Good Behaviour Bond.
The Court may also decide to dismiss the charge even though the offence has been proved. This type of penalty is generally referred to as a ‘Section 10’. This means that a criminal conviction has not been recorded on your criminal record.
For cannabis possession, Police in certain circumstances have a discretion to issue a Caution. This is known as the ‘Cannabis Cautioning Scheme’.
The wide range of sentencing options available means that, to assist in assessing which is most appropriate in your case, the Court may require additional material about you, such as a Report from the Probation and Parole Service or a Counsellor or Medical Practitioner. You may ask for time to provide a Report if you feel it will assist the Court.
The Court will consider the facts and your criminal history, and any Reports or references that are available. It is therefore important that you and your Solicitor assist the Court to understand the impact the various sentencing options may have on your life, so as to minimise that impact as far as is possible.