Drug possession in New South Wales.

What is section 10 of the Drug Misuse and Trafficking Act?

Section 10 of the Drug Misuse and Trafficking Act 1985 creates the offence of possession. The words are short. A person who has a prohibited drug in his or her possession is guilty of an offence. This is the charge that police lay when someone is found with a personal amount of a drug, whether in a pocket, a bag, a car or a home. It is the base level drug charge in the state, below supply and well below importation.

Possession is a summary offence. That means it starts and ends in the Local Court before a magistrate, not before a judge and jury. The full text of the Act is on the NSW legislation site. A related but separate offence is possession of drug use equipment under section 11, which covers items such as pipes used to administer a prohibited drug.

What counts as a prohibited drug?

A prohibited drug is any substance named in Schedule 1 of the Act. The schedule is long. It covers cannabis, cocaine, heroin, methylamphetamine, which most people call ice, and MDMA, which most people call ecstasy, along with hundreds of others. If the substance is on the list, having it is an offence unless the person holds a lawful authority, such as a doctor's prescription.

Schedule 1 also fixes the quantities that matter for each drug. It sets a small quantity, a traffickable quantity, an indictable quantity, a commercial quantity and a large commercial quantity. Those figures do not change whether possession is an offence. They decide how a matter is charged and how serious it becomes. The amount is the line between a simple possession charge and a supply charge, which is why the weight is often the first thing a lawyer checks.

What happens if you get caught with drugs in NSW?

Police have three broad options. They can give a caution, issue an on the spot fine, or charge the person and send the matter to court. Which path they take depends on the drug, the amount, the person's history and, in practice, local policing patterns. For a small amount of cannabis leaf, up to 15 grams, an officer may give a caution under the Cannabis Cautioning Scheme, and can do so up to two times. A caution comes with drug information and, on a second caution, a compulsory call to a treatment line.

For a small amount of a drug other than cannabis, police have been able, since 29 February 2024, to issue a criminal infringement notice under the Early Drug Diversion Initiative. It carries a $400 fine, and can be issued up to two times. A person who completes a drug and alcohol intervention does not have to pay the fine. The catch is that the scheme is discretionary. The figures reported in 2026 show that most eligible people were still charged and sent to court rather than fined, so a person caught with drugs should not assume they will be diverted. The NSW Bureau of Crime Statistics and Research tracks how often diversion is used.

How does the prosecution prove possession?

Possession is not just being near a drug. The Crown must prove two things. First, that the person had physical custody or control of the drug. Second, that the person knew it was there. The High Court read that knowledge element into the offence in He Kaw Teh v The Queen (1985) 157 CLR 523, available on JADE. A person who genuinely did not know a drug was in their bag or car has an answer to the charge.

Control must be exclusive. Where a drug is found in a place that several people could reach, a shared house, a car with passengers, the Crown must rule out the reasonable possibility that someone else had control of it. That principle comes from Filippetti (1978) 13 A Crim R 335. There is a separate trap for larger amounts. Under section 29 of the Act, possession of a traffickable quantity is treated as possession for supply unless the accused proves the drug was for something other than supply. So the weight can turn a possession case into a deemed supply case.

What is the penalty for drug possession in NSW?

The maximum penalty is 20 penalty units, which is $2,200, and imprisonment for two years, or both. That maximum sits in section 21 of the Act. Like all maximums, it is set for the worst kind of case, and a first possession charge for a personal amount is a long way from that. The Judicial Commission of NSW collects the sentencing material for drug offences.

In practice the Local Court has a range of outcomes for possession that stop well short of the maximum. They run from a section 10 dismissal with no conviction, through a conditional release order, a fine, or a community correction order. Prison for simple possession is rare and is usually tied to a bad record or possession inside a gaol. The real question in most matters is not the length of any sentence. It is whether a conviction is recorded at all.

Is there a mandatory minimum sentence for drug possession?

No. There is no mandatory minimum sentence for possession of a prohibited drug in New South Wales. The court has the full sentencing range open to it, from dismissing the charge without conviction up to, in the worst case, the two year maximum. Nothing in the Act forces a magistrate to record a conviction or to impose any particular penalty for possession.

That open range is why the work in a possession matter goes into the material put before the court. A person with a drug dependence can ask to be assessed for the Magistrates Early Referral Into Treatment program, known as MERIT, which lets them address the underlying problem while the matter is adjourned. A person whose drug use is not an issue focuses instead on character, prior good record and the circumstances of the offence. Our note on the Drug Court and treatment pathways sets out how those options work.

What does a section 10 mean in NSW?

There are two different section 10s in a drug case, and people mix them up. Section 10 of the Drug Misuse and Trafficking Act 1985 is the charge, the offence of having a prohibited drug. Section 10 of the Crimes (Sentencing Procedure) Act 1999 is a way of dealing with a charge without a conviction. So a person charged under section 10 of the first Act can ask to be dealt with under section 10 of the second.

The sentencing section 10 is what most clients mean when they say they want a section 10. It lets the magistrate find the charge proved but dismiss it, or discharge the person on a conditional release order, without recording a conviction. For a young person, or someone whose job or travel depends on a clean record, that outcome matters more than any fine. Our guide to section 10 dismissals explains when a court will grant one.

What defence work looks like in a possession case.

The first question is always the search. Police need a lawful basis to search a person, a car or a home. If the drug was found on an unlawful search, the evidence can be challenged and, in some cases, excluded. The second question is possession itself. Did the person have control of the drug, and did they know it was there? Where the drug was found in a shared space, the Crown's case on control can be weaker than it first looks.

Where the possession is not in real dispute, the work turns to outcome. The aim in most matters is to keep a conviction off the record. That means putting the right material before the court: the person's history, the reason the drug was there, any steps taken since, and, where relevant, engagement with treatment. A well-prepared plea can be the difference between a conviction that follows a person for years and a dismissal that does not. This also matters if the person drives, because a separate charge of drug driving is dealt with under different rules again.

Frequently asked.

What does a section 10 mean in NSW?

A section 10 is a way of dealing with a charge without recording a conviction, under section 10 of the Crimes (Sentencing Procedure) Act 1999. The court finds the charge proved but dismisses it, or discharges the person on a conditional release order, with no conviction. It is different from section 10 of the Drug Misuse and Trafficking Act 1985, which is the possession offence itself.

What are 5 things a magistrate will consider when sentencing for a section 10?

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 lists them: the person's character, prior record, age, health and mental condition; the trivial nature of the offence; the extenuating circumstances in which it happened; and any other matter the court thinks proper. The court weighs those against the seriousness of the offence and whether it is right to record a conviction.

What is the penalty for drug possession in NSW?

The maximum is 20 penalty units, which is $2,200, and imprisonment for two years, or both, under section 21 of the Drug Misuse and Trafficking Act 1985. That maximum is reserved for the worst cases. Possession is a summary offence dealt with in the Local Court, and most first matters attract a fine, a conditional release order or a section 10 dismissal, not a gaol term.

What is the penalty for drug possession in Australia?

It varies by state and territory. In NSW the maximum for personal possession is two years and a $2,200 fine. Other states and territories set their own maximums and diversion schemes, and the ACT treats personal possession of small amounts of some drugs as a fine rather than a court charge. The drug, the amount and the person's record shape the outcome everywhere.

What is an example of a prohibited drug?

A prohibited drug is any substance in Schedule 1 of the Drug Misuse and Trafficking Act 1985. Common examples are cannabis, cocaine, heroin, methylamphetamine, which is ice, and MDMA, which is ecstasy. The schedule also fixes the quantities that decide how a matter is charged.

Will I get a criminal record for drug possession?

Not always. A caution or an infringement notice does not create a record. If the matter goes to court, a conviction is recorded unless the magistrate deals with it under section 10 of the Crimes (Sentencing Procedure) Act 1999, by dismissing the charge or imposing a conditional release order without conviction. Whether that happens turns on the record, the circumstances and the material put before the court.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 4 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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