NSW Drug Possession Penalty Notice Scheme

Under the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA), the maximum penalty for possession of a prohibited drug is a fine of $2,200 and/or a term of imprisonment for 2 years. 

The New South Wales Government has created a new penalty notice scheme for drug possession offences, in part a reaction to the rising rate of drug possession at music festivals in NSW. The new scheme is aimed at steering these first-time offenders away from the Court system. The NSW State Government Safety Panel has stated that the scheme is ‘a direct response to festival attendees’ behaviour in relation to the current police enforcement methods. Heavy Police presence, combined with sniffer dogs at music festivals often leads to people hurriedly consuming drugs to avoid detection and the changes are ultimately a harm reduction approach.’

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The Law in New South Wales

The Police have a discretion with regard to issuing a penalty notice (on-the-spot fine), which is detailed in Section 333 of the Criminal Procedure Act 1986 (NSW). It is important to note that although the police ‘can’ issue a penalty notice, they do not have to. It is solely at their discretion. 

Outlined in Schedule 4 of the Criminal Procedure Regulation 2017 (NSW), a police officer can now issue a fine of $400 if:

  • You are caught in possession of a prohibited drug; and
  • In the case of MDMA/Ecstasy in capsule form, the amount of the drug does not exceed a small quantity; and
  • In the case of MDMA/Ecstasy in any other form, the amount of the drug is less than a traffickable quantity; or
  • With any other prohibited drug, the amount of the drug does not exceed a small quantity.

A small quantity of MDMA is up to 0.25g whereas a traffickable quantity of MDMA is up to 0.75g. Schedule 1 of the DMTA sets out how much is a ‘small quantity’ of other prohibited drugs such as Cocaine or Heroin. The law prescribes different quantities as being small quantities depending on the type of drug. For instance, a small quantity of Cocaine is defined in Schedule 1 of the Act as being 1 gram or less. 

What if you receive a notice?

Receiving a penalty notice will not result in a criminal conviction. If you choose to contest the matter, you must elect for the matter to go before a Local Court. If this occurs, you will be given a court date on which you can plead guilty or not guilty. The risk in contesting a penalty notice is that if you plead guilty or are found guilty, the court is then guided by the maximum penalties outlined in the DMTA, being a fine of $2,200 and/or imprisonment for up to 2 years. Once your matter is determined in Court, the matter is likely to appear on any Police Clearance Check.

The Difference with Cannabis

One drug that is not included in this new scheme is cannabis leaf. Where a person is found in possession of cannabis, a police officer has the discretion to give them a warning rather than a Court Attendance Notice or Penalty Notice. This is known as the Cannabis Cautioning Scheme (CCS).

You may receive a warning if:

  • You were found to have possession of no more than 15 grams of Cannabis; and
  • You have no prior record involving drugs, violence or sexual assault; and
  • You have not received the same caution for drug possession on more than 2 occasions.

The formal NSW Police caution warns of the health and legal consequences of cannabis use and provides contact telephone numbers for the Alcohol and Drug Information Service (ADIS). ADIS provides a service to a cautioned offender that includes information about treatment, counselling and support options. Individuals who receive a second and final caution are required to contact ADIS for a mandatory education session about their cannabis use.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. Given the seriousness of the applicable penalties pertaining to drug possession offences, if you been charged with this offence and require legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters with one of our lawyers. 

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