It is not unusual to see police officers and sniffer dogs frequenting music concerts, festivals and other major events to maximise safety and generally, enforce the law.
Festivals such as Mardi Gras and other large music events attract a significant police presence and often result in several criminal charges, many of which are drug related.
So, what happens if you are charged with possession of drugs and what are the consequences? Ideally, you should seek legal advice from experienced criminal lawyers.
What happens when you are charged?
A person charged with an offence will receive a Court Attendance Notice (CAN) and Police Fact Sheet. The CAN will indicate when and where you must attend Court. The Fact Sheet gives details of the offence and sets out the police version of events, in other words the case against the accused person.
The Courts treat drug possession offences seriously with a criminal conviction very possible, even for minor offences.
A criminal record can have serious repercussions and jeopardise job opportunities, scholarships, and overseas travel. It is therefore important to obtain immediate legal advice to provide the best possible outcome for this predicament.
What does ‘in possession’ mean?
Many drug offences in New South Wales fall under the Drug, Misuse and Trafficking Act 1985 (NSW) (the ‘Act’) with the most common type being possession, use and supply of a prohibited drug.
The Poisons and Therapeutic Goods Act 1966 (NSW) defines various ‘synthetic’ drugs and supplements the Act to include those drugs that are chemically different to the more common illicit drugs.
Possession of a prohibited drug falls under s 10 of the Act and is proven by establishing that the person had custody or control of the prohibited drug and that the person actually knew that they had custody or control of that drug.
For a conviction to be made out, each element of the specific drug offence must be proven beyond reasonable doubt.
Generally, it could be difficult for a person charged at an event with drugs in their clothing or bag, to convince a Court that he or she did not have possession or control of those drugs. However, there are circumstances where it may be shown that a person did not have actual knowledge of the presence of the drug, for example where drugs are put into personal belongings (such as a backpack or motor vehicle) without that person’s knowledge.
The circumstances and technicalities vary from case to case, and it is therefore important to obtain advice from a competent lawyer.
What are the penalties?
The quantity of drugs in a person’s possession determines whether they will be charged summarily (in the Local Court) or on indictment (in the District Court). Generally, the larger the quantity the more serious the offence.
Possession of a prohibited drug under Division 1 of the Act carries a maximum penalty of 20 units and / or two year’s imprisonment. These charges are heard in the Local Court which has discretion to impose a number of other penalties including home detention, intensive correction orders, suspended sentences, community service, good behaviour bonds and fines.
The penalty imposed depends on the quantity of drugs in question and the accused person’s prior record. There are also programs aimed at diverting minor drug offenders from the criminal justice system through cautioning or attendance at drug treatment programs.
It may be possible for a lawyer to request the Court to deal with the offence under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). If successful, the Court will prove the charge but not proceed with a conviction. The charge will be dismissed either unconditionally, or subject to conditions such as a good behaviour bond or participation in an intervention program. No criminal conviction is recorded, and no penalty imposed.
The Court will consider the accused person’s character, age, health, mental state and any extenuating circumstances preceding the criminal conduct, the nature of the offence and other relevant factors.
More serious drug offences are dealt with under Division 2 of the Act. Possession of larger quantities may constitute ‘deemed’ supply of a prohibited drug and attract heavier penalties. These matters are dealt with on indictment in the District Court and, if convicted, offenders face grave penalties.
Can I travel overseas with a criminal record?
This really depends on the country of destination, the type and number of criminal convictions, and how long ago they occurred.
Different countries have their own laws regarding the eligibility requirements for being granted a visa.
If you have a criminal record and plan on travelling, you should be aware of the rules relevant to your country of destination. For example, the United States has strict laws regarding entry and conducts extensive security checks on all visa applicants. A criminal record may seriously sabotage any scholarship or study plans in the United States.
Similar laws and policies apply in Canada and several other popular countries.
Even if entry is not precluded outright, there will be several hoops to jump through and boxes to tick, before being granted a visa.
What about my job?
A criminal record can significantly alter your life plans and career goals. If your job requires you to have no criminal conviction, then your future employment will be at stake. In fact, some professions are completely closed for those with a drug conviction.
Conclusion
This information is for general purposes only. If you have been charged with drug possession, or any other criminal offence, getting competent legal advice is crucial and can significantly affect the outcome of your matter. A good criminal lawyer will provide guidance, protect your rights, and give you advice on how to best present your case to the Court.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].