Possession of Drugs

Possession

“Possession” is an indictable offence. Under common law, a person is in possession of a drug if they have physical control or custody of the drug to the exclusion of others not acting in concert with the person. As well as its common law meaning, “possession” has an extended statutory meaning: a person is deemed to be in possession of drugs if the drugs are

• on any land or premises occupied by the person; or
• used, enjoyed or controlled by the person in any place whatsoever, unless the person satisfies the court to the contrary.

The legal test of occupation is having the requisite degree of control over land or premises so as to be able to exclude others. Mere use of premises is insufficient.

Penalties for possession

Possession of cannabis or THC in a small quantity (50 grams or less) not related to trafficking carries a penalty of not more than 5 penalty units. For a first-time offender, the most likely penalty is a section 76 bond. Under the cannabis cautioning scheme noted above, those found in possession of a small quantity of cannabis for the first time are usually cautioned.

The maximum penalty for possession of any drug where possession of the drug is not related to trafficking is a fine of 30 penalty units or imprisonment for one year, or both.

For these two sentencing categories to apply, the accused must satisfy the court, on the balance of probabilities, that the possession was not related to trafficking. If the court is not satisfied that the possession was not for the purpose of trafficking then there is a higher maximum penalty of a fine of up to 400 penalty units or imprisonment for five years, or both.

The penalties for cultivation and trafficking will depend upon the level of trafficking or cultivation, i.e. commercial or large commercial, and can carry maximum penalties of life imprisonment.