Legal Information 2008 Revised Version
POT & THE LAW
Under NSW law, cannabis is a “prohibited drug”. It is an offence to possess, use, supply, or cultivate it. It is also an offence to possess implements for the use of cannabis.
To prove a charge of drug possession, the prosecution must prove that you had knowledge of the drug and custody or control over it. In other words, they must prove that:
you had the drug in your physical custody (for example, in your pocket), or at least under your control (such as in your bag, or in a locker you have the key to) and you that knew that you had the drug in your custody or control.
”Supply” is defined in the legislation to include a wide range of conduct: selling, giving away, agreeing to supply or (technically) sharing pot is classed as supply.
”Supply” also includes being in possession of a quantity of drug which is “deemed” to be intended for supply. In a deemed supply case, you must prove in court that the possession was for reasons other than supply (for example, personal use). In the case of cannabis, the deemed supply amount is 300 grams.
It is an offence to cultivate cannabis. Cultivation means some activity to assist growing or harvesting. It includes planting or watering or fertilising. Even growing one cannabis seedling is an offence.
It is also an offence to possess cannabis plants (which has the same maximum penalty as 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.
Recent changes to the law have created a separate offence of cultivation of hydroponic plants. For cultivating as few as 5 cannabis plants “by enhanced indoor means”, the maximum penalty is 15 years jail and a $385,000 fine (and 20 years jail for cultivating 200 or more hydroponic plants). But the prosecution must prove the cultivation was “for a commercial purpose” (which is not necessary for outdoor cultivation cases).
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 could theoretically 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 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.
The police have the power to issue cautions (rather than take you to court) for possession offences where the amount of marijuana involved is 15 grams or less, and where you have no prior convictions, and you are not being charged with another offence, and you admit guilt. If you are cautioned twice, you must attend compulsory drug counselling. On the third occasion, you must go to court.
Police are legally entitled to enter 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 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
Neither snow nor rain nor heat nor gloom of night stays these drug testing winnebagoes from the swift completion of their appointed rounds…
The police have the power to randomly drug test 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 the “presence” of 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.
Generally speaking, it is legal for police to use sniffer dogs (although sometimes the need a warrant.).
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 a person or an object does not amount to searching.
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 penalty for possession of small quantity of pot might be to have “no conviction recorded” (a “section 10”) – or alternatively, a fine of several hundred dollars. For cultivation of a few plants: a fine or a good behaviour bond.
If larger quantities are involved, or you have more of a record, or if you are convicted of supply or cultivation, you can expect higher penalties.