Illegal substance offences handled successfully
by our experienced specialist senior lawyers!
Expert lawyers with outstanding results.

An expert defence team can advocate for you to avoid a criminal record even if you enter a guilty plea. Consider that being caught with a couple of pills carries a maximum penalty of 2 years in prison and/or a $2200 fine. Remember, you must tell the police some things but generally you have a right to silence if arrested.

Make sure you call your defence team at Goldman and Co Lawyers if you are arrested and charged with substance possession. Your first consultation is free and we offer fixed price court representation to assist you. If police give you a Written Notice of Pleading form which permits you to plead guilty in writing to the court, we advise you do not send this form. It is better to attend court in person.

All the prosecution needs to prove is that the illegal substances were in your possession and that you knew, or should have known, they were in your possession. A friend leaving a small amount of illegal substances marijuana on the back seat of your car after a party is enough for police to charge you with possession.

A complete list of prohibited substances is provided in Schedule 1

This matter will be heard in Local Court. The maximum penalty for this offence under the law is 2 years imprisonment and/or a fine of $2,200.

If you have a good record, you may wish to enter an early guilty plea and have Goldman and Co Lawyers seek a Section 10 Dismissal or a Non-Conviction Conditional Release Order. This will mean you do not get a criminal record and a fine. However, this sentencing option is not always appropriate or attainable even if an offender has no prior criminal history.

There are many reasons why you may wish to enter a not guilty plea. Any legal defence will be decided upon on a case-by-case basis.

For example, you did not have exclusive possession of the substances. This can be raised where the police cannot prove that the substances belonged to you or were in your possession. For example, the substances were found in a shared apartment.

The substance was not a prohibited substance.

Honest and reasonable mistake is where you were honestly unaware that the substances were in your possession and this belief was reasonable in the circumstances.

Police did not have a reasonable suspicion to search you or lacked the evidence that you had the substances at all. Police must have reasonable suspicion before they can search a vehicle, for example. A passenger cannot be convicted of substance possession simply by being in a vehicle which contained substances, or somebody physically in possession of substances.

Police are not allowed to randomly search individuals or vehicles for illegal substances.

The law requires police to have a suspicion ‘on reasonable grounds’ that substances are on a person or in a vehicle at that particular time before a search can be undertaken without a warrant; ss 21 and 36 Law Enforcement (Powers & Responsibilities) Act 2002 (th ‘LEPRA’).

The Courts have found that suspicion on reasonable grounds:

• Involves less than a reasonable belief but more than a possibility, that the substances were present at the particular time,
• Requires some factual basis for the suspicion, and
• The source of police information and its content must be assessed in light of all surrounding circumstances. See: R v Rondo (2001) 126 A Crim R 562.

Lack of a ‘reasonable suspicion’ may occur when:

• Police see somebody in a known substance area and search them because they appear to be nervous,
• A person is stopped for a mobile substance or alcohol test and appears to agitated,
• Where police decide to search someone because he or she – or someone he or she is with – has previously been convicted of illegal substance offences, or

Situations where there may be a ‘reasonable suspicion’ include:

• Where police have observed what looks like a illegal substance transaction,
• Police getting a report of recent illegal substance activity. This might include a detailed description of somebody or a vehicle; or
• Where a person’s actions and demeanour are highly suggestive of illegal substance possession, eg if a person is observed discarding or concealing an object.

Getting the charge dropped or thrown out of court

If police did not have a ‘reasonable suspicion’ to search you, we request the case be withdrawn and seek your legal costs if it is not.

Evidence not correctly obtain can be excluded

Section 138 of the Evidence Act provides protections. The court must consider:

• How important the evidence is to the overall proceedings.
• How badly was the law broken or how severe was the illegal conduct that led to the evidence being obtained.
• Was the law broken or improper conduct engaged in deliberately or recklessly.
• Could legal methods have been used to obtain the evidence

• That a person imported a substance into Australia, and imported that substance intentionally; and
• The substance imported is a border controlled substance, and the person was reckless as to that fact; or
• Depending on the type of offence that you have been charged with, the prosecution may also need to prove the quantity of illegal substances that you imported.

Maximum penalties for an offence against section 307 of the Criminal Code Act 1995 range from 2 years imprisonment to life imprisonment.

The following penalties attach to the specific offences under the Commonwealth Criminal Code. Variables include the quantity of drugs and whether there was commercial intent. The offences carry different maximum penalties for these reasons.

The maximum penalties for a charge of import/export a border controlled plant or substance are:

Commercial quantity:

• Life imprisonment
• 7,500 penalty units
• Or both

Marketable quantity:

• 25 years
• 5,000 penalty units
• Or both

Less than marketable quantity:

• 10 years imprisonment
• 2,000 penalty units or both

No commercial intent:

• 2 years imprisonment
• 400 penalty units
• Or both

Imprisonment is likely, even for a first offender, especially if found guilty of importing a commercial quantity or a marketable quantity of a border controlled substance.

However, the court has a wide range of sentencing options available to them.

• The court may under section 19B discharge the offender without proceeding to conviction. After considering those factors they may dismiss the charge.
• The court may also discharge the offender on Conditional Release without conviction.
• When a person is convicted of an offence against the Commonwealth the court may by order release the person if the person gives security that they will comply with the conditions of their release. These conditions are that the person agrees to:
• I. be of good behaviour (but for a period not exceeding 5 years);
• II. make such reparation or restitution or pay such compensation or costs as the court specifies in the order; and
• III. comply with any other conditions the court thinks fit to specify.
• Recognizance release order/suspended sentence made under section 20(1)(b). It is similar to a suspended sentence as the court sentences that offender to a period of imprisonment but directs that person to be released upon giving security as referred to above.
• Sentencing alternatives under NSW law are also available if they are listed under section 20AB.
  • I. Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
  • II. An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.

For Commonwealth offences, a defence of duress is available under Section 10.2. of the Commonwealth Criminal Code. In this regard, it is noted that what must be established is that a person “reasonably believed” that:

• A threat has been made that will be carried out unless an offence is committed; and
• There is no reasonable way that the threat can be rendered ineffective; and
• The conduct is a reasonable response to the threat.

The defence of duress does not apply if the person committing the offence voluntarily associated themselves with the person who made the threat and the association was made for the purpose of carrying out offences of a like nature.

“Lack of commercial intent” means that you did not intend, or believe, that another person was going to sell the border controlled substance. This is only available as a defence when the amount of substance involved is less than a commercial quantity.

Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled substance without a lack of commercial intent (Section 307.4). That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).

The prosecution must show beyond reasonable doubt that:

• The accused was in possession of a prohibited substances;
• that the substance weighed more than the traffickable amount;

The legal definition of possession is construed broadly by the Courts. To prove possession, the prosecution must prove that a prohibited substance was either in the person’s custody (immediate physical possession of the substance) or control (the ability to exercise control over the drug, to the exclusion of all other people with the exception of those people acting jointly with the offender). Also that the person knew that they had custody or control over the prohibited substance. However, knowledge alone does not amount to possession.

A complete list of prohibited substances is provided in Schedule 1.

Penalties can range from avoiding a conviction altogether to a full time prison sentence, depending upon the circumstances of the case. Although it is Section 29 of DMTA that allows the police to charge a person with deemed substance supply, the person is nonetheless charged under the regular offence of substance supply that is found in section 25(1) of the DMTA, which states: A person who supplies, or who knowingly takes part in the supply of, a prohibited substance of an offence.”

Generally, the maximum penalty for supplying a prohibited substance in an amount less than the commercial quantity is 15 years imprisonment or 10 years in relation to cannabis plant or cannabis leaf.

The matter is normally heard in the Local Court in front of a Magistrate, unless there is an election for the matter to proceed on an indictable basis to the District Court.

Guilty plea

On a plea of guilty, the penalty imposed will depend on the seriousness of the offence. In determining the seriousness of the offence, the court will generally consider the following matters:

• The quantity of the substance;
• Whether the offending was planned and sophisticated;
• Whether there was trafficking to a substantial degree;
• Whether a profit was being made;
• The reason(s) for the offending;
• If the supply was a part of the syndicate;
• The role that the offender was holding within the syndicate.

The most common defence is to prove that the substance was for your personal use and not supply. If police have evidence such as scales, resealable bags, or big sums of cash, this does become a difficult defence to run.

It can be a valid defence to a deemed supply charge to prove that you were holding the substances, or some of the substances, for another person and were intending to return them. It is not supply simply to give substance to another to hold.

It is also a valid defence if you have a prescription from a clinician to possess certain types of substances.

The prosecution must show beyond reasonable doubt that:

In a trial for a simple case of actual supply, the prosecution must prove that:

• The accused supplied a substance to another person intentionally
• The substance that was supplied was a prohibited substance (purity not an issue)
• The accused knew or believed at the time of the supply that the substance was a prohibited substance (not substance specific)

A complete list of prohibited substance is provided in Schedule 1 of the substance Misuse and Trafficking Act 1985.

One can commit a supply offence by “knowingly taking part” in the supply of a prohibited substance. Pursuant to the substance Misuse and Trafficking Act, a person takes part in the supply of a prohibited substance if:

• The person takes, or participates in, any step, or causes any step to be taken, in the process of that supply,
• The person provides or arranges finance for any such step in that process, or
• The person provides the premises in which any such step in that process is taken, or permits any such step in that process to be taken in the premises.

The maximum penalties for supply prohibited substance in NSW are as follows:

• For a small quantity that is less than the traffickable amount, the maximum penalty is a fine of $5,500 and/or 2 years’ imprisonment.
• For more than the traffickable amount and less than the indictable amount, the maximum penalty is a $11,000 fine and/or 2 years’ imprisonment.
• For supply of an indictable amount the maximum penalty is a fine of $220,000 and/or 15 years’ imprisonment. If the prohibited substance is cannabis, then the maximum penalty is a fine of $220,000 and/or 10 years’ imprisonment.
• For supply of a prohibited substance not less than a commercial quantity the maximum penalty is a fine of $385,000 and/or 20 years’ imprisonment. If the prohibited substance is cannabis, then maximum penalty is a fine of $385,000 and/or 15 years’ imprisonment.

Guilty plea

On a plea of guilty, the penalty imposed will depend on the seriousness of the offence. In determining the seriousness of the offence, the court will generally consider the following matters:

• The quantity of the substance;
• Whether the offending was planned and sophisticated;
• Whether there was trafficking to a substantial degree;
• Whether a profit was being made;
• The reason(s) for the offending;
• If the supply was a part of the syndicate;
• The role that the offender was holding within the syndicate.

The most common defence is to prove that the substance was for your personal use and not supply. If police have evidence such as scales, resealable bags, or big sums of cash, this does become a difficult defence to run.

It can be a valid defence to a deemed supply charge to prove that you were holding the substances, or some of the substances, for another person and were intending to return them. It is not supply simply to give substances to another to hold.

It is also a valid defence if you have a prescription from a clinician to possess certain types of substances.