Sydney Drug Lawyers

Possession of a prohibited drug carries a maximum penalty of up to two years’ imprisonment and/or a fine of up to $2,200. A person may be charged if they knowingly have a prohibited drug in their custody or control, including situations where the drug is located elsewhere but under their control. Prohibited drugs include cannabis, MDMA (ecstasy), cocaine, heroin, methamphetamine, and other substances listed in Schedule 1 of the Act.

A conviction for a drug-related offence can have long-term consequences for employment, travel, and licensing. For less serious drug possession offences, the court may impose a Section 10(1)(a) dismissal or Conditional Release Order without conviction, meaning no criminal conviction is recorded. A Section 10(1)(a) is not automatic, even for first-time offenders. The court considers factors such as your character, criminal history, health, mental health, the circumstances of the offence, and the impact a conviction would have on your life. Careful legal preparation is critical to maximising the chance of a non-conviction outcome.

To secure a conviction, the prosecution must prove beyond a reasonable doubt that the substance was a prohibited drug and that you knowingly had custody or control of it. Common defences include lack of knowledge, lack of possession and unlawful police searches. If the prosecution cannot prove each element of the offence, the charge must fail.

The offence of supplying a prohibited drug includes both the actual supply of a prohibited drug and situations where a person is found in possession of a certain quantity, known as a ‘traffickable quantity’,

Once possession of not less than a ‘traffickable’ amount of a drug is proved beyond reasonable doubt, the person charged has the onus of proving on the balance of probabilities that he or she had the drug for a purpose other than for supply. If the accused does this, the charge is automatically downgraded to possession.

Schedule 1 of the Drug Misuse and Trafficking Act categorises the various quantities of different prohibited drugs as follows:

Cultivating prohibited plants in New South Wales is a serious criminal offence governed by the Drug Misuse and Trafficking Act 1985 (NSW). The Act defines cultivation of a prohibited plant broadly and includes activities such as sowing or scattering seeds, planting, growing, tending, nurturing, or harvesting a prohibited plant.

The most commonly prosecuted cultivation offences in NSW involve cannabis plants, also known as marijuana. However, cultivation charges may also apply to other prohibited plants, including poppies and coca plants.

Cultivating a prohibited plant is an indictable offence at law. The penalties for cultivating prohibited plants in NSW depend on the type and quantity of the plant involved. For cannabis cultivation offences, penalties are determined by the number of plants. For other prohibited plants, such as cocaine or poppies, penalties are assessed by weight.

Higher quantities attract more severe penalties, including substantial fines and the possibility of imprisonment.

As with all criminal offences, the burden of proof rests with the prosecution. To secure a conviction for cultivating a prohibited plant, the prosecution must prove beyond a reasonable doubt that:

• You cultivated a plant, or knowingly participated in its cultivation; and
• The plant was a prohibited plant under NSW law.

A conviction cannot be recorded unless the prosecution proves each element of the offence beyond a reasonable doubt. Failing this, the charge must be dismissed

It is an offence under section 24(1) Drug Misuse and Trafficking Act 1985 (NSW) to manufacture, produce, or knowingly to take part in the manufacture or production of a prohibited drug. Depending on the weight of the drug manufactured, sentences range from 10 years imprisonment (less than commercial quantity) to life imprisonment (not less than large commercial quantity).

It is also an offence under section 24A Drug Misuse and Trafficking Act 1985 (NSW) to possess precursors intended for use in the manufacture or production of prohibited drugs. The penalty for this offence is 10 years imprisonment and/or a fine of $22,000.

If you are charged with an offence of manufacturing or producing a prohibited drug or manufacturing a controlled drug for commercial purposes it is important you engage an experienced criminal lawyer to act on your behalf as a conviction for this type of offending almost always results in a lengthy term of imprisonment.

Importing border-controlled drugs or plants into Australia is a serious Commonwealth offence carrying severe penalties, including lengthy terms of imprisonment. Drug importation offences are categorised according to the quantity of the drug involved, with higher quantities classified as marketable or commercial quantities and attracting significantly heavier penalties.

The weight of the drug is a primary factor in determining the seriousness of the offence and the applicable penalty. In sentencing, the court will also consider the accused’s knowledge of the importation, their role in the offending conduct, and any financial or other benefit they expected to receive from their involvement.

Drug importation offences are governed by the Criminal Code Act 1995 (Cth), specifically Part 9.1, section 307, which deals with the importation and exportation of border-controlled drugs and plants.

To secure a conviction for a drug importation or exportation offence, the prosecution must prove beyond a reasonable doubt that:

1. The accused imported or exported a substance into or out of Australia; and
2. The substance was a border-controlled drug or a border-controlled plant within the meaning of the Criminal Code Act 1995 (Cth).

A conviction cannot be recorded unless the prosecution proves each element of the offence beyond a reasonable doubt. Failing this, the charge must be dismissed.

Allowing premises to be used as drug premises is a criminal offence under section 36Y of the Drug Misuse and Trafficking Act 1985 (NSW). An owner or occupier commits this offence if they knowingly allow their property to be used for prohibited drug activity. A first offence carries a maximum penalty of 12 months’ imprisonment and a fine of up to $5,500, and is generally dealt with in the Local Court. Second or subsequent offences are more serious, attracting maximum penalties of 5 years’ imprisonment and a fine of up to $55,000.

In New South Wales, “premises” is broadly defined and includes any building, structure, vehicle, vessel, aircraft, or place, whether built upon or not. Drug premises are premises used for the unlawful supply or manufacture of prohibited drugs, or for the unlawful commercial cultivation of prohibited plants by enhanced indoor means. Prohibited drugs are listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), although for this offence the definition excludes cannabis leaf, cannabis oil, and cannabis resin.

A defence may be available where the accused can establish that they did not know, did not suspect, and could not reasonably be expected to have known or suspected that the premises were being used as drug premises. Each case turns on its specific facts, including the level of control exercised over the property and the surrounding circumstances.

The Drug Misuse and Trafficking Act 1985 (NSW) also creates related offences, including entering or remaining on drug premises without lawful excuse (section 36X) and organising or assisting in the operation of drug premises (section 36Z). These offences carry the same maximum penalties as allowing drug premises, with increased penalties applying for repeat offences.

Common defences to drug possession include:

• Arguing the admissibility of the search by the police that led to the detection of drugs,
• Knowledge of possession (also known as a ‘Filippetti defence’, see below),
• Knowledge of the item being a prohibited drug.

In all criminal proceedings, the prosecution must prove every element of the offence beyond a reasonable doubt. In the context of drug possession charges in New South Wales, an important legal principle is that the prosecution must establish that the accused had exclusive physical control of the prohibited drug. This principle was clearly affirmed in the case of Filippetti v R (1978), which remains a leading authority on drug possession offences in NSW.

The Filippetti case arose after NSW Police executed a search warrant at Mr Filippetti’s home. During the search, approximately 800 grams of cannabis, in the form of buddha sticks, was discovered concealed beneath a cushion on a lounge in the living area of the house. Mr Filippetti was subsequently charged with drug supply under the deeming provisions of the drug legislation and was convicted in the District Court, despite evidence that five other people also lived at the premises.

On appeal to the NSW Court of Criminal Appeal, Chief Justice Sir Laurence Street overturned the conviction. His Honour found that the prosecution had failed to prove beyond a reasonable doubt that Mr Filippetti had exclusive physical control of the drugs. The cannabis was located in a communal living area, accessible to multiple occupants, and there was no evidence linking the drugs specifically to Mr Filippetti. As a result, the Court held that the elements of possession had not been established and the conviction could not stand.

This decision highlights the importance of exclusive possession and control in drug possession cases and demonstrates how charges can fail where drugs are found in shared or common areas. It remains a key authority relied upon in defending drug possession charges in NSW where multiple people have access to the location in which drugs are discovered.