Possession of Prohibited Drug

Possession means having a drug on you or in a house or property you occupy. You can be charged with possession of drugs if drugs are found in a car you own, or a car you are driving.



The offence of possessing a prohibited drug is contained in section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) which states that:

"a person who has a prohibited drug in his or her possession is guilty of an offence”.

The nature and mental element of possession were considered in the case of He Kaw The v R (1985) 157 CLR 523 which states it is for the Crown to prove the accused knew of the existence of the drug in his physical custody or control. This has now become the meaning of possession.


Maximum/Possbile Penalties

Possess Prohibited Drug can be punished with a prison sentence of up to 2 years or a fine of $2,200.00.

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

 In NSW, a court can impose any of the following penalties for Possession of a prohibited drug charge:

  • Full-time Imprisonment;
  • An Intensive Correction Order (ICO);
  • A Community Correction Order (CCO);
  • A Conditional Release Order (CRO); and/or.
  • A Fine.



Since possess a prohibited drug is a criminal offence, the burden of proof lies on the Prosecution. The prosecution must prove a person’s guilt beyond reasonable doubt being that:

  • You had a prohibited drug in your possession; and
  • You knew it was in your possession, or you knew of its likely existence and nature; or
  • You believed that it was a drug.



Sometimes there may exist a defence at law. Some of the possible defences available for those charged with possess prohibited drug can include:

  • Acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study; or
  • A person to whom the prohibited drug has been lawfully prescribed or supplied to; or

A person who:

  • Has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and
  • Had the prohibited drug in your possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply and/or
  • Is licenced or authorised to supply the drug under the Poisons and Therapeutic Goods Act 1966 (NSW);



For Possess Prohibited drug 56% of offenders received a fine.



Our senior solicitor represented a 21-year-old client charged with possession of MDMA while in a nightclub. We acted in his sentencing hearing wherein we tendered excellent character references and a heartfelt letter of apology. The magistrate was persuaded by our submissions and subsequently recorded no conviction on the condition that he enter into a good behaviour bond.



Another client was recently charged with possession of a prohibited substance (ecstasy) after being detected by a police officer “sniffer dog” which was being used as part of an organised drug operation at a Sydney Music Festival. Our principal represented the client at the sentence hearing in the Downing centre Local Court. Prior to court we went about obtaining references, a letter of apology and preparing submissions.  Ultimately, we were able to have the matter finalised at the first appearance by way of a non-recording of a conviction.



For Possession of a prohibited drug, Rep-Revive Criminal Lawyers® offers the following options:

  1. We initiate negotiation with prosecutors (police) (a term referred to as “plea negotiations”) and plead to withdrawal or downgrade of the charge or alternatively, seek amendments to the police fact sheets or documents.
  2. At the hearing/trial, Rep-Revive Criminal Lawyers® shall if you so instruct Plead Not Guilty and drive the argument based on prosecution’s inability to prove the elements of their accusation.
  3. Alternatively, Rep-Revive Criminal Lawyers® may plead guilty on your instructions however, the hearing shall revolve around the facts with an objective to obtain a moderate or minimum punishment.
  4. Lastly, Rep-Revive Criminal Lawyers® on your instructions enter a plea of guilt where you accept all the charges pressed by the police, but we present a case so solid on your behalf, with an objective to persuade and convince the Court to not record a criminal conviction against you.

For further information on your choices at law click on (CHOICES AT LAW tab on our website)



There are several reasons to engage Rep-Revive Criminal Lawyers®:

  •  We are always in your corner

At Rep-Revive Criminal Lawyers® we understand the gravity of a criminal charge on your reputation. Thus, we work with the utmost diligence and fervour to restore any dints to our client’s repute. We fight for your rights and liberty earnestly, and for the best results, irrespective of the intensity of the matter. All these factors have made us known in the industry as always being in our client’s corner. 

  •  We bring about excellent results

Rep-Revive Criminal Lawyers® is driven by positive outcomes and defend your case with skills which have been sharpened by years of experience. You will be dealing with lawyers who are proficient at their craft and will defend your case with rigour and an aim to have the matter withdrawn, downgraded, dismissed or the minimal penalty available at law imposed.

Rep-Revive Criminal Lawyers® are adept in all forms of advocacy and will present your case in the most skilful manner in Court. 

  • Your case will be in the hands of an experienced lawyer

Irrespective of your decision in deciding the course of the case, you will be supported and guided by Rep-Revive Criminal Lawyers® who have been in the provision of legal service for over 21 years. 

If you are charged with an offence, our team at Rep-Revive Criminal Lawyers® are best suited for representing your case.

Please contact our office on 0419 998 398 or 0492 857 721 or email info@rpr5.sydney for more information. The first consultation is free.


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