a
legal survival manual for dopers, dealers, & growers
 Mardi
Grass 2014
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.
The best advice? TAKE CARE
Neither snow nor rain nor heat nor gloom of night stays
these drug testing winnebagoes from the swift completion
of their appointed rounds...
"DECRIMINALISED"
STATE DRUG LAWS
Some States and the Territories have implemented
automatic set penalties for less serious cannabis offences. This
is sometimes misleadingly referred to as “decriminalisation”.
The details vary between jurisdictions, but the general idea is
that police can issue you with a form of infringement notice to
pay a set fine within the specified time.
If you pay the fine, there is no further
action and no conviction recorded against you??. If you do not
pay the fine, you will be taken to court and be liable to punishment
in the usual way.
Some of the details of these set penalty
schemes are shown below.
Offences involving larger quantities of
cannabis than those specified, or offences involving other prohibited
drugs, are dealt with by the courts.
South Australia
The police can issue an infringement notice (called a “simple
cannabis notice”???) for the following offences:
Possession - leaf
less than 25 grams $50.
more than 25 but less than 100 grams $150
Possession - hashish
less than 5 grams $50.
more than 5 but less than 100 grams $150
Cultivation
one plant $150
Smoking (except in public) $50
Possession of equipment $50
The fine must paid within 28 days
s. 45A Controlled Substances Act 1984 (SA) and reg 6 Controlled
Substances (Expiation of Simple Cannabis Offences) Regulation
2002 (SA)
ACT
The police can issue an infringement notice (called a “simple
cannabis notice”???) for the following offences:
Possession - leaf
less than 25 grams $100
Cultivation - not hydro
one plant $100
The fine must paid within 60 days
Section 171A Drugs of Dependence Act 1989 (ACT)
Northern Territory
The police can issue an infringement notice (called a “simple
cannabis notice”???) for the following offences:
Possession - leaf
50 grams $200
Possession - hashish
10 grams resin $200
1 grams oil $20
Cultivation
two plants $200
The fine must paid within 28 days
Pt IIB Misuse of Drugs Act 1981
Western Australia
The police can issue an infringement notice, called a “Cannabis
Infringement Notice (CIN), for the following offences:
Possession - leaf
15 grams $100
30 grams $150
Cultivation
two plants - not hydro $200
Smoking (except in public) $50
Possession of equipment $100
Or you can elect to complete a Cannabis Education Session (CES).
The fine must be paid, or the CES undertaken, within 28 days,
but this period may be extended.
Cannabis Control Act 2003 (WA) and Cannabis Control Regulation
2004 (WA)
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