Legal
Information
2007 Revised Version
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
To be convicted of possession, the police must prove that you
had knowledge of the pot and custody or control over it. In other
words, there must be proof that:
you had the pot in your physical custody (for example, in your
pocket or bag), or at least under your control (such as in a locker
you have the key to)
and
you knew that you had the pot in your custody or control.
Supply
Supply includes selling, giving away or (technically) sharing
pot.
Supply also includes being in possession of 300 grams or more
of cannabis, which is “deemed” to be for supply. In
that case, to avoid a supply conviction, 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 a cultivation offence. The more plants,
the higher the penalty. If you are charged with cultivating
250 plants or more, the case must be dealt with in the District
Court where higher penalties apply. Less than 250 plants will
generally be dealt with in the Local Court.
Hydroponic plants
Recent changes to the law have significantly increased the
penalties for cultivation of hydroponic plants “for a
commercial purpose”. [The prosecution do not have to prove
commercial purpose for outdoor cultivation.]
The new offence category of cultivating cannabis “by enhanced
indoor means” has a maximum penalty for 5 or more plants
of 15 years jail and a $385,000 fine (and 20 years for 200 or
more hydroponic plants).
A solicitor's eye view of the 2006 hydroponics
provisions in the NSW cannabis laws
Drug
Misuse and Trafficking
Amendment (Hydroponic Cultivation)
Bill 2006
[440KB .pdf file download]
In force 20th June 2006 on.
Cookies
Possessing or supplying cannabis cookies or other food with cannabis
cooked in it is illegal. Bizarrely perhaps, 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.
Implements
It is illegal to possess a bong, a pipe or other implements for
consuming pot. It is only illegal to possess implements for the
future use of a prohibited drug. So do not admit to the police
that you intended to use the bong or pipe to smoke pot.
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
Police have a discretion to issue cautions (rather than take
you to court) on possession or use charges where the amount of
pot involved is 15 grams or less, and where you have no prior
convictions, you admit guilt and you are not charged with another
offence. 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). If the police want to search you, the best general advice
is to tell the police you do not consent to a search and ask them
to record that you do not consent (so that it is then possible
to argue in court that the search was unreasonable). Do not physically
resist the search, because that could lead to additional charges.
Random Roadside Testing
As well as alcohol breath testing, police have the power to
randomly drug test car and truck drivers, although only for
cannabis, amphetamine and ecstasy. The testing is by saliva
swab, with a screening test at the driver’s window.
If the initial test indicates positive to THC, amphetamine or
ecstasy, you have to give a second swab which is tested in a
specially equipped Winnebago drug bus. If that second swab shows
positive, the sample is sent to a laboratory for analysis. You
do not get arrested, although you are not permitted to drive
for 24 hours. You will be sent a court attendance notice after
laboratory results have confirmed the presence of the drug.
The maximum penalty for driving with one of these drugs in your
system is a $1,100 fine and 3 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.
. Victorian police have been conducting random roadside drug
testing since 2004.
Sniffer dogs
Generally speaking, 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 to conduct
random street searches. The police might obtain a warrant to use
sniffer dogs on “high visibility” street patrols.
The courts have ruled that the action of a police dog sniffing
the air near a person 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 is a fine of $11,000 and/or 2 years jail.
The maximum penalty for cultivating or possessing 300 plants
is 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 of pot is a fine of
several hundred dollars. For cultivation of a few plants: a
fine or a good behaviour bond. If you have more of a record,
or if larger quantities are involved, or if you are convicted
of supply, you can expect higher penalties.
TAKE CARE
