Possession of Cannabis in NSW

13 March 2023 in Criminal Law

What Is cannabis?

Cannabis is the general name for drugs that are made from the plant cannabis sativa. It is known by many street names such as marijuana, weed, pot, dope, ganja, grass, yarndi, hooch, joint, 420 and Mary Jane. The different forms of cannabis include:

1. cannabis leaf
2. cannabis oil
3. cannabis resin
4. cannabis plant
5. cannabis plant cultivated by enhanced indoor means

In NSW, cannabis is a prohibited drug under schedule 1 of the Drug Misuse and Trafficking Act 1985.

Is it legal to possess cannabis?

Under section 10 of the Drug Misuse and Trafficking Act 1985, it is an offence to possess any amount of cannabis.

For a person to be charged with possession of cannabis, the prosecution must prove beyond a reasonable doubt that:

1. The cannabis was in the person’s custody or control. To have custody, the person must have physical possession of the cannabis. To have control, the person must have a right to do something with the cannabis, such as place it somewhere;
2. The person knew that they had custody or control; and
3. That the substance was cannabis.

The Local Court deals with possession charges – except when other more serious drug supply offences are associated with the charge.

The quantity of cannabis affects the charge of possession. The maximum penalty for possession is 2 years imprisonment and/or a 20 penalty unit fine.

Cannabis Cautioning Scheme

In NSW, the cannabis cautioning scheme applies when a person is in possession of small quantities of cannabis leaf. The scheme gives police the discretion to give the person a warning rather than a court attendance notice or penalty notice. This is based on the premise that arresting and formally charging people for the possession of small amounts of cannabis is not the most effective way of addressing drug use. The Cannabis Cautioning Scheme is contingent on the satisfaction of certain conditions:

1. The amount of cannabis must be 15g or less;
2. The cannabis is for personal use;
3. The person admits possession and isn’t involved in other criminal charges at that time;
4. The person has no previous criminal record relating to drugs, violence or sexual assault;
5. The person has not previously received a caution more than twice; and
6. These cautions are most likely to be issued in the event of a first offence. If found with a small amount of cannabis a second time, the person must contact the Alcohol and Drug Information Service (ADIS) for treatment, counselling and support options. A third offence is most likely to result in criminal charges.

Quantity and Deemed Supply

The charge of possession is affected by the quantity of cannabis found.

5g of cannabis plant or resin, 30g of cannabis leaf and 2g of cannabis oil is considered a small quantity.

300g of cannabis leaf, 30g of cannabis resin and 5g of cannabis oil is a trafficable quantity and the deeming provision applies. This means that the cannabis possessed is presumed to be for supply purposes – even if there is no evidence of this – and a charge of supply will apply unless it is proven that the amount is for personal use only.

The maximum penalty in the Local Court is a fine of 100 penalty units and/or 2 years imprisonment. However, if the Department of Public Prosecution (DPP) elects to have the matter heard in the District Court, the maximum penalty is a fine of 2,000 penalty units and 10-15 years imprisonment.

Medicinal cannabis

The therapeutic use of cannabis is legal for certain people under strict conditions. An authorised doctor may prescribe cannabis for health reasons, such as managing chronic pain, reducing nausea caused by chemotherapy or treating epilepsy. This is very limited and supervised, with quality control measures in place. Requirements for these medicines are similar to other Schedule 8 and unregistered medicines which have not been proven safe and effective.

How can BSM help?

The criminal lawyers at Brander Smith McKnight are highly experienced with cannabis possession charges and can assist you with legal advice, negotiation of charges and the Fact Sheet and court representation if you are charged.