Will you go to gaol for this offence?

6.1What the law allows

The maximum

The maximum penalty for possess prohibited drug is two years imprisonment, a fine of 20 penalty units, which is $2,200, or both. That is the ceiling. It exists so that the court has room to deal with the worst version of the offence: a person with a long history of drug offending, found with a quantity just under the traffickable amount, on bail for something else, who has breached every order the court has ever made. The maximum tells you what is legally possible. It tells you almost nothing about what is likely for you.

The question most people actually want answered is not whether gaol is possible but whether it is likely, and the honest answer for the great majority of people on this charge is no. Lesson 10 gives you the numbers. This lesson explains why the numbers look the way they do, because the reasons are the same reasons you will use in your own submissions.

Legal basis: Drug Misuse and Trafficking Act 1985 (NSW) ss 10, 21. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.

6.2Imprisonment is the last resort

The principle

NSW sentencing law contains a rule that governs every sentence: a court must not sentence a person to imprisonment unless it is satisfied that no penalty other than imprisonment is appropriate. The Judge has to work down the list of alternatives, from a dismissal through fines and community orders, and only arrive at custody once every one of them has been considered and rejected. If the Judge does impose imprisonment, the reasons have to say why nothing else would do.

For possess prohibited drug, at the lower end, the alternatives are almost always adequate. The offence is one of personal use. Nobody else was harmed. The community's interest is served by a penalty that marks the offence and addresses any underlying drug use, and a fine or a conditional order does both. That is why, as Lesson 10 shows, imprisonment is imposed in about one in a hundred finalised matters, and those matters are not first offences.

Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1). This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.

6.3What moves a matter toward custody

Risk factors

Be honest with yourself against this list, because it is the list the Judge will be working from.

Prior drug convictions, particularly recent ones, and particularly where a previous court gave you a non-conviction outcome and you have offended again. Offending while on a conditional release order, a community correction order, bail or parole, because it shows the last order did not work. A quantity approaching the traffickable amount, or a facts sheet that describes packaging, scales, cash or messages suggesting supply. Other charges on the same notice, especially violence or driving offences. A history of breaching court orders, which tells the Judge that a community-based order is not a safe bet.

The factors also compound. One of them is a feature of your matter. Several together change how the court sees you: no longer a person who made a mistake, but an offender with a problem the court has to manage, and the sentencing purposes shift from rehabilitation toward deterrence and community protection accordingly.

If none of these apply to you, custody is not a realistic outcome and you should stop worrying about it and start working on the outcome that is realistic, which is the difference between a conviction and no conviction. If two or more apply, the question changes, and the box at the end of this lesson is for you.

6.4The question that actually matters

Reframing

For most people reading this course, the real question is not "will I go to gaol" but "will I have a criminal record". A conviction for possess prohibited drug follows you into job applications, working with children checks, professional registrations, rental applications and visa forms, in some cases for a decade. A non-conviction outcome does not. The gap between those two results is where your preparation goes, and it is a gap the Judge can only close if you give them the material to do it with.

The rest of this module explains the outcomes available, the law of the offence, how the Judge decides, and what the data shows. Module 3 then builds the case for the best outcome your circumstances support.