Possession Of Drugs WA

Being charged with drug possession in Western Australia carries a risk of substantial fines and/or imprisonment.

The following information explores the definition of drug possession, the elements of this offence, possible penalties, and the importance of seeking expert legal representation if you are charged with a drug possession offence.

What Constitutes Drug Possession in WA?

Under section 6(2) of the Misuse of Drugs Act 1981 WA (the MDA) it is a simple offence to possess a “prohibited drug”.  Prohibited drugs include methamphetamine, cannabis, cocaine, heroin, MDMA and other illicit drugs listed under the Act.

"Possession" under WA law extends beyond mere physical custody of the drug and incorporates circumstances where the drug is within a person’s dominion or control. This is sometimes referred to as ‘deemed possession’ and can include drugs found in:

• Personal belongings (e.g., a bag or pocket);
• Shared spaces (e.g., a car, home, or hotel room); and
• Locations under the accused’s control (e.g., a safe or storage unit).

Elements of the Offence: What Police Must Prove

To secure a conviction for drug possession, the prosecution must establish the following elements beyond reasonable doubt:

1. The accused knew of the existence of a drug in their possession and was aware it was likely to be a prohibited drug. The prosecution does not have to prove that that the accused knew specifically the prohibited drug possessed.
2. The accused held dominion or control over the drug, even if the drug was not in their physical custody.
3. The substance was a prohibited drug (meaning it is illegal to possess). Drugs such as methamphetamine, cannabis, cocaine, heroin, or MDMA are obvious examples of prohibited drugs.

Penalties for Drug Possession in WA

The likely penalties for drug possession in WA will depend on the type and quantity of drug possessed, as well as the accused’s criminal history. The maximum penalties can include fines up to $2000 and/or imprisonment up to 2 years.

Eligible defendants, particularly first-time offenders, may be directed to diversion programs that focus on education and rehabilitation rather than punishment. Eligibility depends on factors such as the nature of the offence and the individual’s criminal history.

Aggravating factors, such as large quantities of drugs or prior convictions for similar offending, can lead to more severe penalties, while mitigating factors, like participation in diversion programs, may reduce the likely sentence.

Potential Defences to Drug Possession Charges

There are a number of available defences which may be raised to challenge drug possession charges, including:

1. The accused did not have knowledge that the substance was a prohibited drug. For instance, if they held a package for someone else without knowing its contents.
2. The drug in the accused’s alleged possession belonged to someone else, and they lacked dominion or control over the drug.
3. The drug in their possession was not a prohibited drug.
4. A formal defence may be established such as necessity or duress, which may mean that the accused should not be found legally responsible for their conduct.

An experienced lawyer can also challenge the strength of the prosecution's case by highlighting gaps in the evidence, questioning the reliability of the evidence, or demonstrating procedural errors.

The Legal Process: What to Expect

The legal process for drug possession charges generally includes the following stages:

1. Investigation and charge

When police suspect involvement in a drug possession offence, they conduct investigations that may include gathering physical evidence, such as testing substances to confirm they are prohibited drugs, and interviewing suspects or witnesses to build a case. If sufficient evidence is found, charges may be laid, and the accused is placed before the court.

2. Plea

All criminal cases begin in the Magistrates Court of Western Australia, where charges are formally read, and the accused can enter a plea of guilty or not guilty. Often, before a plea is entered an adjournment is granted to allow the accused to seek legal advice, which is crucial for understanding the charges and possible outcomes. If the accused pleads guilty to the drug possession offence, the court may sentence them immediately or adjourn the matter for a pre-sentence report and a sentencing hearing.

3. Trial

If the accused pleads not guilty, simple offences proceed to trial before a Magistrate in the Magistrates Court. Negotiations prior to trial between the defence and prosecution may lead to reduced charges or a discontinuance of the charges if the evidence is insufficient or the public interest is not served by proceeding. A trial involves both sides presenting their case before a Magistrate, including calling of witnesses and admitting of physical evidence. After both sides have presented their case, a Magistrate will find the accused either guilty or not guilty.

4. Sentencing

If an accused is found guilty, the court will determine an appropriate penalty in a sentencing hearing. Sentences for drug possession offences consider factors such as the drug type, quantity, and the accused's personal circumstances. Aggravating factors, such as large quantities of drugs or prior convictions, can lead to more severe penalties, while mitigating factors, like participation in diversion programs, may reduce the sentence.

At each stage, legal representation is crucial to ensure rights are protected and to achieve the best possible outcome.

Why Choose Andrew Williams as Your Defence Lawyer?

Andrew Williams is an experienced Criminal Lawyer and Barrister who can provide you with expert legal advice in relation to drug offences in Western Australia.

Andrew offers a range of criminal law services and traffic law services in Perth, Fremantle and throughout Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

FAQs About Drug Possession Charges in WA