Cannabis is a “prohibited drug” under NSW law. Any activity involving cannabis is illegal – possession, use, supply or cultivation. It is also an offence to possess implements for the use of cannabis. All cannabis offences in NSW are dealt with in court – except if you qualify for a “cannabis caution”. Cautions are discretionary. NSW does not have “civil penalties”, i.e., fines without criminal conviction for minor offences, as there are in some other States and Territories.
In NSW the police have the power to randomly drug test drivers by saliva swab for the presence of cannabis, amphetamine and ecstasy. If the initial test indicates positive, you will be required to give a second swab which is tested in a specially equipped drug bus. If that second swab shows positive, the sample is sent to a laboratory in Sydney for analysis. In this case, you do not get arrested, although you are not permitted to drive for 24 hours. If the laboratory confirms the presence of the drug, you will be sent a court attendance notice. The maximum penalty for driving with the “presence” of one of these drugs in your system is a $1,100 fine and 6 months minimum licence disqualification (the same penalty as for low range drink driving). It is an offence to refuse to provide a saliva sample or to fail to stop for a roadside drug test when requested by police.
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” 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 or more of cannabis, you must prove that your possession of the cannabis was not for supply. For example, that it was for your personal use.
Cultivation 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 range 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.
There is a separate offence under 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”.
In February 2016, the Australian Federal Parliament passed new national laws for the use of medicinal cannabis by people with painful and chronic illness. The Narcotic Drugs Amendment Bill 2016 establishes licensing and permit schemes for the cultivation and production of cannabis and cannabis resin for medicinal and scientific purposes. A “state or territory government agency” will be authorised to undertake cultivation and production of cannabis and manufacture of medicinal cannabis products. Under the new federal scheme, patients with a valid prescription can possess and use medicinal cannabis products manufactured from cannabis legally cultivated in Australia, provided the supply has been authorised under the Therapeutic Goods Act and relevant state and territory legislation. The changes put medical cannabis in the same category as restricted medicinal drugs such as morphine.
Despite these changes in federal legislation, in NSW it is still currently an offence to use, possess, cultivate or supply cannabis for medicinal purposes. The NSW Government has announced it will conduct trials on the effectiveness of medicinal cannabis, but there has been no change in the law. A magistrate has discretion to impose no conviction and no penalty in medicinal cannabis [and other] cases, if there is a guilty plea, or guilt after hearing.
Possessing or supplying cannabis cookies, or other kinds of cannabis edibles, is illegal. Bizarrely, the drug law treats cookies as if they were pure cannabis. So, because weight determines the nature of the criminal charge, you could theoretically be charged with “deemed supply” if you possess more than 300 grams of cookies, even though you are mostly possessing chocolate, flour and butter etc. In this situation, the police would charge you only with possession.
The police have discretion to issue a caution [instead of taking you to court] for small possession offences only. If you are found in possession of less than 15 grams of cannabis, and you have no prior convictions, and you admit the cannabis is yours, you might get a police caution [no conviction]. If you are cautioned a second time, you must attend compulsory drug counselling. On a third occasion, you must go to court. The cautioning rules for young people under 18 are slightly more generous.
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.
Interacting with Police
You do not have to answer police questions or make a statement, 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 sound like you’re admitting something, the police can use that in evidence against you. Remember that the police must prove your guilt – anything you say may make it easier for them to do just that. Generally it is better to say nothing until you have had legal advice.
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. A search warrant gives police the power to search anybody found on the premises, to use reasonable force to break open doors and cupboards, and to seize and remove any illegal items discovered. 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 a prohibited drug, or a weapon, or evidence of a crime.
There is legislation which authorises police use of dogs for “drug detection”, without a warrant, in certain places: on trains and buses, and on or near railway stations and bus terminals, in licensed premises, at dance parties and music festivals. However, the same legislation requires the police to obtain a warrant to use sniffer dogs in other situations, for example to conduct random street searches.
The best advice? TAKE CARE !!
Steve Bolt, Solicitor