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 Legal
Information
Pot & The Law
Under NSW law, it is an offence to possess, use, supply, or cultivate
pot. It is also an offence to possess implements for the use of
pot.
Possession
Possession requires proof of knowledge and custody or control.
In other words, proof that:
you had the pot in your physical custody (for example, in your
pocket or bag), or at least under your control, exercising a right
to exclude others from possession.
and
you that knew that you had the pot in your custody or control.
Supply
Supply includes selling, giving away or (technically) sharing
pot.
Supply also includes possession of 300 grams or more of cannabis,
which is “deemed” to be for supply. In that case,
you must prove in court that the possession was for reasons other
than supply (for example, personal use).
Cultivation
Cultivation means some activity to assist the growing or harvesting
of cannabis, such as planting or watering or fertilising. Even
growing one seedling is an offence.
Cookies
Possessing or supplying cannabis cookies or other food with cannabis
cooked in is illegal. Bizarrely, the drug law strictly treats
cookies as if they were pure cannabis. So, because weight determines
the nature of the criminal charge, you can be charged with deemed
supply if you possess more than 300 grams of cookies, even though
you are mostly possessing chocolate and flour and butter. In these
situations, the police can and often would charge you only with
possession.
If you are arrested
You do not have to answer police questions or make a statement,
even after you are arrested. Just give your name and address so
that bail can be granted.
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 cautions
The police have the power to issue cautions (rather than take
you to court) where the amount of pot involved is 15 grams or
less, and where you have no prior convictions, you and you are
not charged with another offence, and you admit guilt. If you
are cautioned twice, you must attend compulsory drug counselling.
On the third occasion, the case must go to court.
Search warrants
Police are legally entitled to enter private property if they
are invited in by one of the occupiers or if they have a search
warrant.
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.
Personal searches
The police have the power to search you in a public place, without
a warrant, if the police believe on reasonable grounds that you
might possess a prohibited drug (or a knife, or evidence of a
crime).
Random Roadside Testing
The police do not yet have the power to conduct randomly drug
test car and truck drivers.
Sniffer dogs
It is legal for police to use sniffer dogs.
There is legislation which authorises police use of dogs for “drug
detection” in some places (on trains and buses, and on or
near railway stations and bus terminals, in licensed premises,
at dance parties and music festivals) without a warrant.
The same legislation requires the police to obtain a warrant to
use sniffer dogs in other situations, for example for random street
searches. The police would routinely obtain a warrant to use sniffer
dogs on “high visibility” street patrols such as the
what they call “Operation Vikings”.
The courts have also ruled that the action of a police dog sniffing
the air does not amount to searching.
Penalties
The quantity of drugs involved determines both the maximum
penalty for the offence, and whether the case is heard in the
Local Court or the District Court.
The maximum penalty for use or possession is a fine of
$2,200 and/or 2 years jail.
The maximum penalty for supply or cultivation depends
on the quantity involved. As an example, the maximum penalty for
the supply of 400 grams would be a fine of $11,000 and/or 2 years
jail. The maximum penalty for cultivating 300 plants would be
a fine of $385,000 and/or 15 years jail.
These are maximum penalties – the actual penalty
imposed will usually be considerably less, especially for a first
offender.
For people with little or no criminal record, the most
common penalty for possession of small amounts is a fine of several
hundred dollars. For cultivation of a few plants, fine or a good
behaviour bond. If you have more of a record, or if larger quantities
are involved, you can of course expect higher penalties.
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