Uh oh – you’ve been caught with drugs in your possession at a festival in NSW. What happens next depends on a few things: what drugs and quantities you are found with, your criminal history, and the police officer’s discretion (what they decide to do). This article provides some general guidance about what will happen if you are caught with drugs. However, it is only relevant to NSW and should not be taken as legal advice.
CANNABIS CAUTION
In NSW, people caught with a small amount of cannabis (less than 15g) can be issued a cannabis caution instead of being charged with an offence. Receiving a cannabis caution will not give you a criminal record, and you won’t have to pay a fine. A record will be kept that you received a caution, but you usually don’t have to declare it when applying for jobs or travelling overseas.
It is up to police discretion (decision/choice) to decide whether to give you a caution. They can only give a cannabis caution if you admit to the offence and do not have prior convictions for sexual, violent, or drug-related offences.
You can only receive two cannabis cautions – three strikes and you’re out! The first time you receive a caution you will be encouraged to contact Alcohol and Drug Information Service (ADIS) for information, education and counselling. The second time you are cautioned, you will have to contact ADIS for a mandatory education session.
ON-THE-SPOT FINES
As of 2019, NSW police now have the power to issue $400 on-the-spot fines for the possession of a ‘small quantity’ of drugs. A record of this will be kept, but you will not get a criminal record for possessing drugs if you pay this fine.
Informal discussions with researchers and police have revealed that on-the-spot fines for drug possession are only being issued at festivals. If you are caught with drugs at a train station, at the pub, walking around Kings Cross - ANYWHERE other than a festival – it is highly unlikely that you’ll be given an on-the-spot fine. Instead, you will receive a ‘court attendance notice’ and will have to go to court.
On-the-spot fine are only issued to people caught with a ‘small quantity’ of drugs. The exact amount/weight of what is considered to be a ‘small quantity’ of drugs is outlined in Schedule 1 of the Drug Misuse and Trafficking Act 1985 and depends on the drug. For example, a ‘small quantity’ of heroin, speed or meth is 1 gram, while a ‘small quantity’ of MDMA caps is 0.25g. If you are caught with even 0.01g over what the law states is a ‘small quantity’ you cannot receive an on-the-spot fine. For example, if you have 0.26g of MDMA caps you will be formally charged with possession. Look at the Table Below to see what the law defines as a ‘small quantity’.
Alprazolam/Xanax 5g
Amphetamines 1g
Buprenorphine 4g
Cocaine 1g
2CB 0.08g (4 DDU)
Dexamphetamine 1g
DMT 0.8g (4 DDU)
Fentanyl 0.0025g
GBL 10g
GHB 10g
Heroin 1g
Ketamine 2.5g
LSD 0.0008g (4 DDU)
Methamphetamine 1g
MDMA 0.25g
NBOMe family 0.0008g (4 DDU)
Oxycodone 2.5g
Psilocybin 0.04g (4 DDU)
*DDU stands for direct dosage unit e.g. a pill, capsule, or tab
Note: Police are not able to give on-the-spot fines for cannabis possession, as this is covered by the cannabis caution system.
COURT ATTENDANCE NOTICE
Cannabis cautions and on-the-spot fines are given at the discretion of the police officer – police may decide to charge you with possession, regardless of whether you are eligible for a cannabis caution or on-the spot fine.
If this happens you will receive a ‘court attendance notice’, which is a piece of paper saying you must go to a courthouse to have your case heard. If you go to court, you can either fight the charge or accept the punishment handed down to you by the magistrate. The maximum penalty you could receive for possession of a ‘small quantity’ of drugs is up to 2 years imprisonment and/or a fine of up to $2,200.
Magistrates will often be lenient, and it’s rare to be given the maximum penalty. The Court may decide to completely dismiss the charges or give you a conditional release order without conviction. This means you will not receive a criminal record.
Whether you receive a conditional release order without a criminal conviction is supposed to depend on your ‘personal character’, which takes into account your age, health, mental condition. It also depends on how serious the offence was and the circumstances that led to the offending. Conditional release orders aren’t a no-strings-attached deal – the ‘conditions’ of your release may require you to attend drug and alcohol treatment or ban you from associating with certain people or visiting certain places.
PRESCRIPTION MEDICINE
You might have noticed that Valium (diazepam) is not included on this table. That's because some prescription medications are dealt with under the Poisons and Therapeutic Goods Act 1966. The maximum penalty you could receive for possessing Valium without prescription is up to 6 months imprisonment and/or $2,200 fine.
LEGAL HELP
If you get into legal trouble and have to go to court, your best bet is to get a lawyer to help you with your case. Having a lawyer is helpful because you’ll be working with someone who knows what they’re doing. Representing yourself in court isn’t advised, and usually leads to a worse outcome in the court case.
If you can afford it, your best option would be to go with a private criminal lawyer – doing so is more likely to lead to a result that you’re happy with. If you can’t afford to get a private lawyer, you may be eligible for free legal representation by a lawyer from LegalAid.
If you need legal help, call LawAccess NSW on 1300 888 529 Monday to Friday between 9am and 5pm (excluding public holidays). They will be able to advise you as to what to do next, and can refer you to LegalAid if you are eligible.
The information written here should not be taken as legal advice. Call NUAA on 02 8354 7300 or TOLL FREE 1800 644 413 for further information.