On-the-spot fines for drug possession in NSW

The ability of police to issue an on-the-spot fine for drug possession in New South Wales has been in place since early 2019. There are many advantages to receiving an on-the-spot fine as opposed to a court attendance for a drug possession offence. However, the ability for the police to hand out a court attendance notice for drug possession is still available. This article will explain in what circumstances someone in possession of drugs could receive an on-the-spot fine.

The advantages of an on-the-spot fine from an offender’s perspective

If you receive what is called a ‘penalty notice’ for an offence, payment of the amount set out in the penalty notice will mean that a person is not liable to any further proceedings for the alleged offence. You do not have to go to court. If you pay the penalty notice, the alleged offence will not appear as a conviction on your criminal record, and you will not have to disclose it to future employers. This will save you time, money for legal representation and the fear of a conviction hanging over your head. The amount of the penalty notice for possession of a prohibited drug is $400.

Currently, NSW Police can issue penalty notices for the offences of larceny (if the value of the property does not exceed $300), goods in custody, offensive conduct, offensive language, obstructing traffic, unauthorised entry of a vehicle or boat and behaving in an intoxicated and disorderly manner following a move-on direction.

However…

It may sometimes be in your interests to take a drug possession matter to court. Perhaps the search undertaken upon you was an illegal search, in which case, evidence obtained by way of the search may be inadmissible. You may not have known that you had the drugs on you. Of course, paying a lawyer to make these arguments on your behalf can be very expensive, but having the courts available as a ‘check and balance’ on the actions of police is a very important aspect of government in Australia. The problem with penalty notices is they take away the administration of justice from the courts and give it to the police, when it is perhaps in society’s interest to keep the administration of justice with the judiciary.

Will I get an on-the-spot fine for drug possession?

Schedule 4 of the Criminal Procedure Regulation 2017 (NSW) provides that police can issue a penalty notice if the amount of the drug is less than the relevant ‘small quantity’ as provided by Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). In the case of MDMA, a penalty notice can be issued if the quantity is less than the small quantity (0.25 grams) if the drug is in capsule form or less than the traffickable quantity (0.75 grams) in any other form. Please note that these provisions do not apply to cannabis leaf.

It would not be a good idea to rely on the fact that you might receive an on-the-spot fine for drug possession as a good reason to attempt to carry illicit substances in a public place. It is still within the discretion of the police whether to issue a court attendance notice for an offence of drug possession. The police will probably consider what drug was found, the amount of the drug found and whether you have other drug offences on your record.

It appears however that this scheme has not affected the NSW Police Force’s appetite to charge people and bring them before a Court for drug possession. Statistics show that between 24 September 2018 and 30 June 2021, 8,085 people with no criminal records were brought before the Court for 1 or more drug possession charges.

You should also be aware that if you are in possession of an amount of a drug above the relevant traffickable quantity of the drug, you can be charged with supplying a prohibited drug which is a very serious offence for which you will not receive an on-the-spot fine. Below are the traffickable quantities and small quantities for a number of drugs which NSW Police often deal with:

If you have been charged with possession of a prohibited drug, we can help you through every step of the way. We understand how daunting it can be going before the courts for the first time. We have represented many clients where the Magistrate has decided to proceed without recording a conviction for an offence of drug possession. Contact us as soon as possible and we can advise you on your prospects of receiving a non-conviction bond.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*