It is an offence against section 10 of the Drug Misuse and Trafficking Act 1985 to possess a prohibited drug.

Elements of the offence

In order to prove this offence the prosecution must establish the following elements beyond a reasonable doubt:

  1. That a prohibited drug was in the accused’s custody or control; and
  2. That the accused knew that they had custody or control of a prohibited drug.

While the term “possess” generally refers to on-person possession, a person can be charged with this offence if a prohibited drug is found in their home or car for example.

A complete list of prohibited drugs is provided in Schedule 1 of the Drug Misuse and Trafficking Act 1985.


The amount found determines the penalties that can be imposed.
Traffickable quantities of prohibited substances can potentially result in a “deemed supply” charge being laid where the prosecution allege that the amount found is deemed to be possessed for the purposes of supplying the drug to others.

All possession charges are dealt with by the Local Court unless a person is also charged with more serious drug supply offences. The maximum penalty for possessing a prohibited drug is 2 years imprisonment and/or a fine of $2,200.

The court can impose the following sentences depending on the circumstances of the offending conduct and the accused’s subjective circumstances:

• Section 10 dismissal
• Conditional Release Order without conviction
• Conditional Release Order with conviction
• Section 10A (conviction and no further penalty)
• Fine
• Community Corrections Order
• Intensive Corrections Order
• Sentence of full-time imprisonment

If you have been charged with possessing a prohibited drug, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skye, Zoom and FaceTime anywhere around the world.