Commonwealth Director of Public Prosecutions

Drug Possession

Drug Possession

Drug possession generally applies where a person has physical custody or control over the drug or has the drugs in a place that gives them the right, power or ability to take them into custody.

For example, a person would be in possession of drugs if they:

  • received or obtain possession of the drugs
  • have some degree of control over the disposition of the drugs, whether or not the drugs are within that person’s custody
  • have sole or joint possession of the drugs.

Drug possession categories

Commonwealth drug possession offences can be divided into two categories:

  • Category 1: Border controlled drugs or plants that have been unlawfully imported or are reasonably suspected of having been unlawfully imported.
  • Category 2: ‘Simple’/domestic possession offences; no link to importation. These include possessing controlled drugs or precursors together with offences relating to the possession of equipment and instructions for commercial cultivation of plants, or the commercial manufacture of drugs.

The ‘simple’ or ‘base’ possession offence in section 308.1 of the Criminal Code is also available as an alternative verdict to a number of other offences.

Detecting drugs and precursors have been imported at the border usually results in a substitution of the illicit substance with an inert substance. This in turn means that offenders who subsequently take delivery of the ‘substance’ will often be charged with the offence of ‘attempt’.

  • Penalties for the offence of ‘attempt’ are the same as for the completed offence.

Key legislation

Main offences

  • s.307.5(1) Criminal Code—possessing commercial quantities of unlawfully imported border controlled drugs or plants
  • s.11.5 & s.307.5(1) Criminal Code—attempt to possess commercial quantity of unlawfully imported border controlled drugs or plants
  • s.307.10(1) Criminal Code—possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported
  • s.308.1 Criminal Code—possessing controlled drugs
  • s.308.2 Criminal Code—possessing controlled precursors

Penalties

The maximum penalties for possessing unlawfully imported border controlled drugs or plants are:

  • life imprisonment for possessing commercial quantities of unlawfully imported border controlled drugs or plants (s.307.5 Criminal Code)
  • 25 years’ imprisonment for possessing marketable quantities of unlawfully imported border controlled drugs or plants (s.307.6 Criminal Code)
  • 2 years’ imprisonment for possessing unlawfully imported border controlled drugs or plants (s.307.7 Criminal Code).

The maximum penalties for possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported are:

  • life imprisonment for possessing commercial quantities of border controlled drugs or plants reasonably suspected of having been unlawfully imported (s.307.8 Criminal Code)
  • 25 years’ imprisonment for possessing marketable quantities of border controlled drugs or plants reasonably suspected of having been unlawfully imported (s.307.9 Criminal Code)
  • 2 years’ imprisonment for possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported (s.301.10 Criminal Code).

The maximum penalty for possessing controlled drugs (s.308.1) or controlled precursors (s.308.2) is 2 years’ imprisonment.

Partner agencies

Relevant Legislation