Legal Advice

Some Legal Advice about Cannabis

Cannabis is a “prohibited drug” under NSW law. Any activity involving cannabis is illegal – possessing it, using it, growing it and supplying it. All cannabis offences in NSW are dealt with in court, except if you qualify for a “cannabis caution” and the police may decide to caution you instead. Cautions are discretionary. NSW does not have “civil penalties” (that is, fines without criminal conviction for minor offences) as there are in some other States and Territories.

Cautions

If you are found in possession of less than 15 grams of cannabis AND you have no prior convictions AND you admit that the cannabis is yours, you might get a police caution (which is not recorded as a conviction and you do not have to go to court). Cautions are issued at the discretion of the police officer. If you are cautioned a second time, you must attend compulsory drug counselling. On the third occasion, you must go to court. The cautioning rules for young people under 18 are slightly more generous.

TYPES OF OFFENCES

Possession

To prove possession, the police must prove beyond reasonable doubt that you knew that you had the cannabis in your custody or under your legal control. Depending on the circumstances, it might or might not be difficult for the prosecution to prove that you must have known about the presence of the drug. That is why the police will always try to get you to talk – to make admissions about your knowledge or other involvement – to get you to admit to things they otherwise might not be able to prove. In cases where more than one person has access to the cannabis – for example, where it is found in a shared house or in a car with several occupants – the prosecution must rule out, beyond reasonable doubt, the possibility that someone other than the accused person was in possession of the cannabis.

Supply

Supply includes selling, giving away and agreeing to supply. Sharing cannabis is supply. Any supply is treated as a serious offence and of course the penalties get quite severe for supply on a large commercial scale. The law also creates a “deemed supply” offence – that is, possession of a certain quantity of a drug that the law presumes is intended to be for supply. In the case of cannabis, the deemed supply amount is 300 grams. If the police can prove that you were in possession of 300 grams of cannabis or more, you must prove that your possession of the cannabis was not for supply (for example, that it was for your personal use).

Cultivation

Cultivating means some activity to assist growing or harvesting the plant. Cultivating cannabis can include planting or watering or fertilising. Again, the police must have enough evidence to prove beyond reasonable doubt that you knowingly carried out the cultivation activity. There is also an offence of possessing cannabis plants, with the same penalty as for cultivation. There are higher penalties – and trial by judge and jury – for cultivating or possessing more than 250 plants. Cases involving fewer than 250 plants are heard by a magistrate in the Local Court. Hydroponic plants There is a separate offence under the NSW law of cultivation of hydroponic plants. The maximum penalties are a lot higher than for cultivating an equivalent number of outdoor plants. But for this charge the police must also prove that the indoor cultivation was “for a commercial purpose”.

LIKELY PENALTIES

The law sets out maximum penalties for the different offences, but the actual penalty imposed in a particular case depends on the circumstances of the case. The most significant factors are usually the type of offence (that is supply, cultivation or possession), the quantity of cannabis involved and whether you have any prior convictions. You should also expect a lower penalty for pleading guilty. The range of penalties available to the court includes fines, good behaviour bonds, community service orders and jail. The court can also decide to find someone guilty of an offence but record no conviction (under a provision known as “section 10”)

Generally speaking, supply and cultivation offences are considered more serious and are punished more heavily than possession offences. A first offender pleading guilty to possession of a small amount of cannabis might have no conviction recorded, or get a fine. Someone convicted of supply for profit, especially if it is not their first supply offence, would be looking at jail.

WHAT CAN THE POLICE DO?

You do not have to say anything to the police, whether they arrest you or not. It is usually better to say something like, ‘I do not wish to say anything until I get legal advice”. Beware of small talk and being trapped into a conversation. Just tell them your name, age and address. If you admit anything (or say something that sounds like you’re admitting something), the police can use that in evidence against you.

Searches

Police are legally entitled to enter and search private property if they have a search warrant, or if they are invited in by one of the occupiers. The police have the power to search you personally, without a warrant, if the police believe on reasonable grounds that you might be in possession of cannabis (or other prohibited drug).

Sniffer dogs

The police sometimes use sniffer dogs for drug detection. In some places (in licensed premises, at dance parties and music festivals, on trains and buses, and on or near railway stations and bus terminals), the police can use sniffer dogs without a warrant. In other places, for example on the street, they need a warrant to use a sniffer dog.

DRIVING

It is an offence to drive under the influence of cannabis. That offence requires proof of intoxication that had some effect on your driving.

Random Roadside Testing

The police have the power to randomly drug test drivers – for cannabis, amphetamine and ecstasy – by saliva swab. If the test indicates positive, the sample is sent to a laboratory for analysis. You do not get arrested, but you are not permitted to drive for 24 hours. If the laboratory confirms the presence of the drug, you will be sent a notice to go to court. The maximum penalty for driving with the “presence” of one of these drugs in your system is a $1,100 fine and 3 months minimum licence disqualification.

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Steve Bolt 2015

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