Under section 10 of the Drugs (Misuse and Trafficking) Act it is an offence to possess illicit (or prohibited) drugs. It is also an offence to have prescription-only drugs that have been prescribed for someone else. A person found with a small amount of marijuana might be charged with possession if the amount can be regarded as for personal use.
If the amount exceeds personal use, or if the person is found to be carrying drugs for themselves and a friend, the charge could be elevated to trafficking. This is a serious offence requiring good legal representation to prove the amount found on the person was for their own consumption.
Pleading not guilty to possession
The prosecution needs to prove that the person charged had the illegal substance in their possession, custody or control when the offence occurred. It also needs to prove the person was aware, or should have been reasonably aware, they were in possession of the drugs. A person can also be charged with possession if they have temporarily taken custody of a drug, for instance a joint that has been passed around.
In criminal law the test is beyond reasonable doubt. So to defend the matter in court, the person charged will have to present evidence that raises uncertainty in the magistrate’s mind as to whether they knew they had drugs in their possession. The court will consider whether there is a criminal history involving drugs prior to the charge and the circumstances of the alleged offence.
Pleading guilty to possession
Pleading guilty has its benefits if there is a previous history of drug offences or if the prosecution case is very strong. The court considers a guilty plea as accepting responsibility and not wasting its time and resources. Your lawyer can help design your submissions toward a section 10 under the Crimes (Sentencing Procedure) Act, which accepts a guilty plea but does not record a criminal conviction. In deciding this, the Court will take into consideration:
- a person’s character and antecedents (their personal history, age, health and mental condition)
- the trivial nature of the offence
- any extenuating circumstances in which the offence was committed
- any other matter the court decides should be considered.
Under section 10 there is also a pathway to be dealt with by the Magistrates Early Referral Into Treatment (MERIT) program, however not everyone is eligible for the scheme (see link here). MERIT is considered an exercise in therapeutic jurisprudence, meaning it aims to help a drug addict’s underlying problems in the hope they can be rehabilitated. Its aims are similar to the Drug Court except that MERIT is a voluntary pre-plea scheme and only functions in the Local Court jurisdiction. A person charged with a drug offence or offences can be referred by:
- police at the time of arrest
- their lawyer, including Legal Aid and the Aboriginal legal Service
- another agency, for instance Community Corrections (Probation and Parole)
- the defendant’s family
- the court MERIT participants must be committed to the scheme—their performance is monitored by the court and is often a condition of bail. Administered by health professionals, the standard MERIT treatment plan is an intensive intervention that operates over a minimum of 12 weeks. When the program is completed, the court is provided with a final report and then sentencing occurs.
If you, or someone you know has been charged with drug possession contact our Criminal Law team today for a consultation to get your best defence underway.
*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.