Drug Charges

Drug possession arrests are a common occurrence in New South Wales (NSW), and understanding your rights during such an incident is crucial. This comprehensive guide focuses on the rights of individuals facing a drug possession arrest, the legal landscape surrounding these incidents, and how to navigate the system if you’re charged with drug possession.

The Legal Framework and Your Rights

Under Section 10 of the Drug Misuse and Trafficking Act 1985, it’s an offence to possess a prohibited drug. However, it’s essential to understand that you have specific rights during a drug possession arrest that protect you throughout the process.

What Constitutes Possession and Your Right to Challenge It

Legally, possession involves three key elements:

• Physical custody or control of the drug
• Knowledge of the drug’s presence
• Intention to possess the drug

You have the right to challenge any of these elements if you believe they don’t apply to your situation during a drug possession arrest. It’s crucial to remember that shared or “joint” possession is also recognised under the law, but you maintain the right to dispute this if you believe you’re wrongly implicated.

Your Rights During a Drug Possession Arrest

If you’re caught with drugs, it’s vital to know your rights:

• Right to be informed: The police must inform you that you’re under arrest and explain why during the arrest.
• Right to silence: You have the right to remain silent beyond providing your name and address. This is a fundamental right during any drug possession arrest.
• Right to legal representation: You have the right to contact a lawyer before answering any questions during a drug possession arrest.
• Right to refuse consent for search: While police may still conduct a search, you have the right to explicitly state that you don’t consent during an arrest.
• Right to privacy during strip searches: If a strip search is conducted during a drug possession arrest, you have the right to privacy and to be searched by an officer of the same sex.
• Right to medical attention: If needed, you have the right to request medical attention during or after the arrest.

Navigating the Arrest Process

If you’re subject to a drug possession arrest, here are key points to remember to protect your rights:

• Stay Calm: Remain polite but firm in exercising your rights during the drug possession arrest.
• Exercise Your Right to Silence: Beyond providing your name and address, it’s generally advisable to say nothing else until you’ve spoken with a lawyer during a drug possession arrest.
• Request Legal Representation: Clearly state your desire to speak with a lawyer before answering any questions during the drug possession arrest.
• Don’t Consent to a Search: While police may search you anyway during a drug possession arrest, explicitly stating that you don’t consent can be important for your defence later.
• Be Aware of Strip Search Rights: If police conduct a strip search during a drug possession arrest, assert your right to privacy and appropriate conduct.

The Court Process and Your Rights

If you’re charged following a drug possession arrest, you’ll be given a Court Attendance Notice (CAN). Here’s what you need to know about your rights:

• Right to Legal Representation: You have the right to legal counsel throughout the court process following the arrest.
• Right to Prepare Your Case: You have the right to gather evidence and prepare your defence following the arrest.
• Right to Plead: You can choose to plead guilty or not guilty following a drug possession arrest.
• Right to a Fair Trial: If you plead not guilty, you have the right to a fair trial following the arrest.
• Right to Appeal: If you’re unsatisfied with the court’s decision, you have the right to appeal following conviction.

Defences and Your Right to Challenge the Charges

Following a drug possession arrest, it is your right to mount a defence. Possible defences include:

• Lack of Knowledge: Asserting you didn’t know the drugs were in your possession.
• Illegal Search: Challenging the legality of the search that led to the drug possession arrest.
• Momentary Possession: Arguing you only had momentary possession of the drugs.

Your Right to Seek Leniency

If pleading guilty following a drug possession arrest, you have the right to present mitigating factors for a more lenient sentence, such as:

• First Offence: If this is your first drug-related offence.
• Small Quantity: If the amount of drugs was small and for personal use.
• Rehabilitation Efforts: If you’ve taken steps to address any drug use issues.

Your Right to a Section 10 Dismissal

For first-time offenders or those with minor charges following a drug possession arrest, you have the right to seek a Section 10 dismissal. This means the court finds you guilty but doesn’t record a conviction, which can be crucial for protecting your future prospects.

Navigating the Aftermath of a Drug Possession Arrest

Following the arrest, you retain certain rights:

• Right to Privacy: You’re not obligated to disclose your arrest or conviction in many situations.
• Right to Seek Support: You have the right to seek counselling or support following the arrest.
• Right to Fair Treatment: Employers and others cannot discriminate against you solely based on a drug possession arrest.

Get expert legal help

Understanding your rights during and after a drug possession arrest in NSW is crucial. While this guide provides an overview, each case is unique, and the specific circumstances can significantly impact the outcome. Remember, you have the right to seek professional legal advice at any stage of the arrest or subsequent legal proceedings.

At Hannay Criminal Defence, we specialise in drug offence matters and are committed to protecting your rights at every stage of the process. Our experienced Drug Lawyers Sydney can:

• Provide immediate advice if you’re facing a drug possession arrest
• Represent you during police questioning to ensure your rights are protected
• Develop a strong defence strategy tailored to your specific circumstances
• Negotiate with prosecutors to potentially reduce charges or penalties
• Represent you in court, arguing persuasively on your behalf
• Seek alternative sentencing options, such as diversion programs or rehabilitation
• Apply for a Section 10 dismissal when appropriate
• Guide you through the aftermath of a drug possession arrest, including advice on employment and travel implications.

We understand the stress and uncertainty that comes with an arrest. Our goal is not just to defend you legally, but to support you through this challenging time and work towards the best possible outcome for your future. Contact one of our Criminal Lawyers Sydney today for a confidential consultation.

 

 

The interaction of the possession of drugs for personal use with the legal system has long been a contentious one, with many observers feeling the court system is clogged with relatively minor cases.

In NSW this issue was partially addressed in 2019 when NSW police were empowered to issue penalty notices – known as a Criminal Infringement Notice (CIN) – for possession of a small amount of a drug, removing the need for a person charged with the offence to appear in court. A fine of $400 could be issued for possession of certain prescribed quantities of certain drugs as set out in the Drug Misuse and Trafficking Act 1985. The motivation for the change was to keep those caught with a small amount of an illegal drug for personal use out of the court and criminal justice system.

This year the CIN system will be expanded in NSW, which we’ll provide more detail on in this article. If you need advice or guidance on anything discussed in this post, contact our expert criminal law team.

Changes to the CIN system in 2024

Commencing in 2024, NSW police will now be able to issue up to two on-the-spot fines of $400 to individuals found with illegal substances deemed for personal drug use and small quantity drug possession offences. For subsequent offences within a specified period, individuals are no longer eligible for a CIN and instead may face criminal charges and potential court proceedings.

Signalling a changed emphasis in which drug use is approached as a health problem rather than a criminal offence, those issued with a CIN will be encouraged to undertake a tailored drug and alcohol intervention program. These programs often encompass education, counselling, and support services tailored to address substance abuse and addiction. Those who complete such a program will have the fines waived. If the program is not completed, the penalty will be enforced by Revenue NSW.

The new policy expands on a program already in place for minor cannabis possession and now includes drugs such as cocaine, MDMA and ice.

The changes to CINs do not apply to:

• large-scale production and manufacturing of drugs;
• convicted drug suppliers or traffickers;
• those who have already incurred two CINs for drug possession.

Other things to know about issuing of CINs

A person issued with a CIN may instead opt to have their matter heard in court, offering them the chance to put their case with proper legal representation.

Questions have been raised by some commentators about the circumstances in which an officer will issue a CIN, in particular in determining whether a person is holding drugs for ‘personal use’. At this stage it appears to be at the discretion of individual police officers as to whether an on-the-spot fine is issued. The system relies on officers being able to determine whether the weight of the drug qualifies as a small quantity, not to mention the quality and nature of the drug.

There is also the possibility of individuals paying the on-the-spot fine in the knowledge they will avoid a criminal record for possession – a possibility if they attempt to contest the matter in court.

Discuss your case with our criminal law specialists

At Hannay Criminal Defence our Sydney criminal lawyers have a long, proud track record representing those facing charges, from minor to serious offences. There are a number of difficult issues involved in personal drug use offences and the changes to CIN present a number of legal questions which our expert team of criminal law professionals can help answer. Call us today if this topic raises any issues for you.

Drug addiction destroys lives and for some people, can, unfortunately, lead to involvement in a crime.

Even people with no criminal background who previously led law-abiding lives can be derailed by serious drug abuse. Sadly many people are further brutalised when sentenced to a term of imprisonment. Mixing within the criminal subculture, predictably, can increase the chances that a person descends into further criminality.

This is one of the reasons the judicial system has developed alternative methods of dealing with drug offenders, including orders for them to go into a rehabilitation facility for treatment. In this way, a person who has committed a drug offence stands a better chance of being ‘diverted’ from further criminal offences onto the path of recovery.

How do such alternative sentences work?

In Queensland, magistrates can refer a person to the state’s Drug and Alcohol Court started in Brisbane in 2018, where they may be placed on a drug and alcohol treatment order. Under this order, adult offenders are supervised and undertake treatment to address their drug and/or alcohol dependency issues and criminal offending.

Offenders will generally be required to agree to complete a two-year program in the community while serving a suspended sentence. Those who appear in front of the Drug and Alcohol Court, however, must live within the Brisbane Magistrates Court district.

Judges and Magistrates may also impose a condition that an offender participates in rehabilitation, treatment or other intervention program or course as part of their bail conditions.

Some treatment programs offer live-in accommodations to people who are on bail for an offence. A person who is willing to reside at a drug and alcohol rehabilitation centre as a condition of their bail can ask a drug and alcohol counsellor at the centre to arrange an assessment. If assessed as suitable for a live-in program, the treatment centre can provide written confirmation to be produced to the court.

A bail application by a person remanded in custody on drug charges or who has previous convictions for similar offences can help their cause before the court by providing proof they are addressing the offending behaviour, such as a letter confirming placement in a drug rehabilitation centre or that they are undertaking to counsel.

Case example: In February 2022 a former Queensland Corrective Services officer accused of drug trafficking in methamphetamine was granted bail to attend an eight-month rehabilitation program after two unsuccessful earlier attempts at bail.

Lawyers for the man said he feared for his life if sentenced to a custodial term given his former career in Corrective Services.

‘I must say in the circumstances there’s the purely social benefit aspect of this that these spots in these clinics are pretty hard to come by and if somebody’s got one, I think in the overall interest of justice and social interest it’s a pretty big move to prevent him from taking it up,’ the judge in the case observed.

Seek help from experienced criminal lawyers

While some courts will divert an offender towards drug and alcohol rehabilitation programs – particularly if they are first offenders – in other situations an offender will need to convince the court they should be allowed bail to undertake rehabilitation and avoid a jail sentence.

If you are facing drug-related charges, you need the guidance of highly experienced Brisbane criminal lawyers. At Hannay Criminal Defence, our award-winning professionals have the background to help you take advantage of residential rehabilitation programs to get your life back on track. 

Drug use is a prevalent problem in modern society with serious and widespread consequences for individuals, health systems, emergency services, crime rates and a range of other issues.

For these reasons penalties to deter the misuse of dangerous drugs are severe. There is, however, an understandable difference between the severity of penalties for personal possession and commercial use of dangerous drugs, which we’ll give more detail on in this post.

What is important to know at the outset is that possession of illegal drugs, whether for personal or commercial use, is an offence.

How is possession for personal use treated?

In Queensland, it is illegal to possess dangerous drugs – even in small quantities – for personal use. There are strict laws surrounding drug offences and it is important to understand how the law operates due to the broad definition of possession. Unfortunately, possessing an illegal drug is not always associated with owning it.

By personal use, we mean that the drugs were not intended to be supplied or trafficked for profit. But the use of dangerous or illegal drugs for personal, recreational use is still a criminal offence and does not amount to a defence.

It’s important to understand that a person can commit a criminal offence by possessing dangerous drugs without being the owner of the drugs. A person who minds a bag containing illegal drugs for a friend, for instance, or who lives in a share house where drugs are present – and has knowledge of their existence – can be charged with possession, even though they did not own or use the drugs.

A person charged with possession in this situation should seek legal advice as soon as possible – there are defences available for those charged with drug possession.

The key factors in determining what sentence or penalty applies are whether you possess the drug/s for personal or commercial use, plus the quantity and type of the drug in your possession.

Penalties for personal use

A person charged with possessing a small amount of drugs for personal use will generally have the matter dealt with in the Queensland Magistrates Court. Penalties for this type of offence include good behaviour bonds and probation. A person found in possession of a small amount of an illegal drug may be given a good behaviour bond and ‘drug-diverted’ by being ordered to attend drug counselling or other forms of rehabilitation.

If a person is charged with having a larger amount of a dangerous drug in their possession their case may be moved from the Magistrates Court to the District or Supreme Court if it’s alleged the drugs were in fact for commercial purposes.

Penalties in the District Court or Supreme Court for commercial possession include imprisonment. If you are charged with a larger quantity of drugs, the prosecution may allege that you had a commercial purpose (i.e. intended to make a profit from the drugs).

Penalties for drug possession for commercial purposes

The offences relating to dangerous drugs and commercial use are set out in sections 5-11 of the Drugs Misuse Act 1986 (Qld), covering activities from trafficking; supply; obtaining property from trafficking or supply; producing or possessing dangerous drugs; possessing drug-related things; possessing precursor chemicals and drug lab equipment; and permitting the use of a place.

Dangerous drugs are divided into those appearing in either Schedule 1 or Schedule of the Act, with penalties reflecting the fact that Schedule 1 drugs are considered more dangerous. Sentences for traffic and supply of Schedule 1 drugs can be up to 25 years in prison or 20 years for Schedule 2 drugs.

Courts can also impose fines under the Drugs Misuse Act as an alternative, or in addition to, a term of imprisonment.

It should also be noted that under Queensland’s Corrective Services Act, a person sentenced to prison for drug trafficking will receive a non-parole period equating to 80 per cent of their sentence if the court finds the offence is a serious violent offence (SVO). Anyone sentenced to 10 years imprisonment for drug trafficking is automatically considered to have committed an SVO.

Speak with expert criminal lawyers

This post provides a brief overview of the penalties and sentences relating to dangerous drugs but as it illustrates, different factors come into play depending on the quantity and type of drug involved, and its planned use.

If you are charged with any of the offences discussed in this article, it’s important to contact an experienced criminal law firm as soon as possible. At Hannay Criminal Defence, we are award-winning criminal law specialists with a proven track record in advocating for clients facing serious charges relating to dangerous drugs. We will handle your matter with sensitivity and understanding, so contact our Brisbane criminal lawyers as soon as possible if you need urgent legal help. 

Though all of Australia takes punishment of drug offences seriously, Queensland has always been well-known as one of the tougher states when it comes to legal penalties for such offences. If you or someone you know has unfortunately found themselves charged or convicted with a drug offence in Queensland, there are some basic things you should know before contacting a criminal lawyer.

What Exactly Is A Drug Offence?

Though seemingly a simple question, the answer is more nuanced than you might think. There are many different levels of drug offence, all of which vary in both severity and penalty type. The seriousness of your offence will likely hinge on: the classification of the substance(s) in question, the amount of the substance(s) in question, and your intended purpose with the substance(s) in question.

Possession: This offence doesn’t refer to the basic meaning of the word ‘possess’. While it will include drugs that are on your person or in your possession, it also includes a variety of other situations where the substances are still considered to be ‘in your possession’. The offence of possession simply refers to a person or party receiving and controlling a drug. This does not require it to be your drugs, and you may not even be required to be aware that the substance in question is an illegal drug.

Possession can involve holding a drug (knowingly or unknowingly) for a friend, illegal substances in your house, car, or personal items, as well as ownership of drug paraphernalia, even when the paraphernalia in question hasn’t been in direct contact with the illegal substance. If you are living with someone who is in possession of drugs, you may be considered guilty of possession as well. The more serious the classification and the larger the amount of the substance in question, the more serious the penalty for a possession charge will be.

Supplying: The charge of supplying isn’t exclusive to selling drugs, though that is a common misconception. You can be found guilty of supplying drugs even when you are receiving nothing in return for the exchange. And, in fact, you may be found guilty of supplying drugs through merely offering an illegal substance to someone.

If you supply, distribute, administer, or offer to do any of the three, you may be found guilty of the offence of supplying. The severity of the penalty levied against you will again be affected by the classification and amount of the substance involved, however the characteristics of the person you were supplying the substance to will also play a large role in your sentencing as well. Supplying to vulnerable individuals such as minors, the developmentally disabled, or unknowing victims will result in much more severe sentencing.

Trafficking: Trafficking drugs differs from supplying drugs in that it must be a commercial act, usually (but not always) at a larger scale and with a higher level of organisation. Trafficking, unlike supplying, must have a financial component and this is the offence most associated with organised crime and gang activity. However, this can still include smaller scale sales like selling to friends. Because there is a commercial gain involved with this crime, the penalties for trafficking are more severe than for those involved in supplying.

Importing: Essentially, importing is trafficking drugs internationally and will be considered a Commonwealth offence with extremely harsh penalties, including the possibility of a life sentence.

Producing: Drug production is as straightforward as it sounds: whether you are cooking or growing, owning the operation or merely participating, you can be found guilty of producing and will be subjected to extremely harsh penalties. Though there will be harsher penalties for more serious classifications of drug, you will still be liable regardless of the scope of your drug production.

If you or someone you know is facing possible prosecution for a drug offence, contact our Gold Coast Criminal Lawyers at Hannay Criminal Defence for a consultation today on 07 3063 9799.

Drug trafficking is one of the most serious offences involving dangerous drugs in Queensland, carrying heavy terms of imprisonment. But given there are many different types of drug offences in Queensland legislation, it’s helpful to know at the outset what ‘trafficking’ and ‘dangerous drugs’ actually means.

In simplest terms, trafficking means you traded in or dealt with dangerous drugs, including selling them. In a court, this will require the prosecution to prove that you were ‘carrying on a business’ in dangerous drugs.

Schedule 1 and 2 of the Drugs Misuse Regulation 1987 list the drugs considered ‘dangerous’ drugs, including (but not limited to) in Schedule 1 amphetamine, cocaine, heroin, lysergide, methylamphetamine and ecstasy. Schedule 2 lists over 100 less serious drugs, including cannabis, codeine, methadone, morphine, opium, oxycodone and Psilocybin (magic mushrooms).

How Are Drug Trafficking Charges Treated By The Legal System?

To be prosecuted for drug trafficking, the prosecution will need to prove beyond a reasonable doubt that you carried on an unlawful business in which you trafficked a dangerous drug.

In order to prove this the police will need to show that you conducted several transactions over a period of time, though you don’t need to have traded indefinitely nor have made a profit from drug sales in order for it to be considered trafficking. Earlier cases suggest you might be carrying on a business to sell drugs if activities such as the following have occurred:

• Advertising or promoting the ‘product’ by communicating with prospective buyers;
• setting up lines of supply;
• negotiating the process and terms of supply and payment;
• soliciting and receiving orders; and
• arranging places and times of delivery.

It should be noted that a one-off deal can still be considered trafficking in dangerous drugs, as a business can be said to have been carried on from the point of the first transaction. To determine this the court will look at whether in this particular situation you intended – in selling the drug – to make a financial gain (either for yourself or someone else).

Are there defences to a trafficking charge?

If you are charged with drug trafficking, you may be able to plead a defence to the charge which will either reduce your penalty or, in a best-case scenario, see the charge dropped. The most common defences to this charge are:

• That the drug was not a dangerous drug;
• that there was a mistake of fact, meaning you had an honest and mistaken belief that it was not a dangerous drug;
• that you acted under duress, meaning you were not acting with free will but because someone else had, for example, threatened you.

What are the penalties?

Trafficking in a dangerous drug is what’s known as an indictable offence, meaning a serious crime likely to be heard before a judge and jury in the Supreme Court.

The maximum penalty for trafficking of a dangerous drug specified in Schedule 1 of the Act outlined above is 25 years, and 20 years for a drug specified in Schedule 2.

A number of other factors are taken into account by a court in determining a jail sentence less than the maximum penalty for this offence, including the type and purity of the drug; its street value; the value of the trafficking business and the time frame over which it was conducted; as well as the level of your involvement and your personal circumstances.

The importance of legal representation

As can be seen from the penalties above, being charged with drug trafficking is a very serious matter and requires the guidance and assistance of an experienced criminal lawyer for anyone charged with the offence. Prosecution carries not only jail time but permanent damage to your reputation and restrictions on your ability to work and travel.

The State can also commence proceedings against you under the Criminal Proceeds Confiscations Act 2002, applying to seize or otherwise deal with your property and assets if you’ve been charged with drug trafficking. If this happens you will need immediate legal advice as strict time limits apply in such matters.

In any event, the criminal justice system in Queensland is complex. A law firm like Hannay Criminal Defence has many years of experience navigating this system, with an extensive knowledge of relevant laws and the vital practical experience of appearing in many Queensland courts on behalf of people charged with such offences.

If you’ve found yourself in the difficult position of facing charges for drug trafficking, or are trying to help someone who has, contact our Gold Coast & Brisbane criminal lawyers today on 07 3063 9799 for a free initial consultation.