Everything you need to know about Cannabis Charges

23 October 2022 in Criminal Law

Cannabis is known by many street names including marijuana, weed, pot, dope, ganja, grass, hooch, joint and Mary Jane. Cannabis is a prohibited drug under schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). It is separated into different categories,

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

Possession of Cannabis

It is an offence to possess cannabis pursuant to s10 of the Drug Misuse and Trafficking Act 1985 (NSW). Possession charges are dealt with in the Local Court (except when there are other more serious drug supply offences associated with the charge). The maximum penalty for possession is 2 years imprisonment and/or a 20 penalty unit fine (which is currently $2,200).

The prosecution must prove beyond a reasonable doubt that

1. The cannabis was in the person’s custody or control. In order to have custody, the person must have physical possession of the cannabis. In order 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.

Cannabis Cautioning Scheme.

This applies in NSW and applies when a person is in possession of cannabis leaf. In short, police have the discretion to give the person a warning rather than a court attendance notice or penalty notice.

This scheme is based on the assumption that arresting and formally charging people for the possession of small amounts of cannabis is not the most effective way of addressing drug use. There are certain caveats that apply for the person to receive a warning

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 during 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

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 is required to 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 of Cannabis and Deemed Supply

The quantity of cannabis affects the charge of possession. A small quantity is considered to be 5g of cannabis plant or resin, 30g of cannabis leaf and 2g of cannabis oil.

A traffickable quantity which is 300g of cannabis leaf, 30g of cannabis resin and 5g of cannabis oil means that the deeming provision applies. That is, it is presumed that the cannabis possessed is for purposes of supply, even if there is no evidence of an actual supply having taken or about to take place.

The logic behind this law is that it is unlikely that a person will have large quantities of cannabis solely for personal use. Being in possession of traffickable quantities of cannabis will result in a charge of supply of cannabis unless it can be proven that the amount is only for personal use. 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 (which is $220,000) and 10-15 years imprisonment.

Supply of Cannabis

It is an offence to supply cannabis pursuant to s25 of the Drug Misuse and Trafficking Act 1985 (NSW). This includes selling, sending, forwarding, delivering, giving away and/or agreeing or offering to supply it to someone.

The amount of cannabis determines the charge, where the matter is heard and the penalties.

1. Traffickable quantity, being 300g of cannabis leaf, 30g of cannabis resin and 5g of cannabis oil. The maximum penalties in the District Court can range from a fine of 2,000 penalty units (which is currently $220,000) and/or 10 years imprisonment for cannabis plant or leaf or 15 years for resin or oil. If heard in the Local Court, the maximum penalty is a fine of 100 penalty units (which is currently $11,000) and/or 2 years imprisonment. It should be noted that a person can be theoretically charged for supplying a small quantity of cannabis (30g of cannabis leaf, 5g of cannabis plant or resin or 2g cannabis oil) if it can be successfully proven that they were supplying cannabis. This is very uncommon.
2. Indictable quantity, being 50g of cannabis plant, 1kg of cannabis leaf, 90g of cannabis resin and 10g of cannabis oil. The maximum penalties are a fine of 2,000 penalty units (which is currently $220,000) and/or 10 years imprisonment for cannabis plant or leaf or 15 years for resin or oil. This matter is a Table 1 offence which means that the matter may be dealt with in the Local Court unless the DPP elects to have it heard in the District Court. If heard in the District Court, the penalties are significantly higher.
3. Commercial quantity, being 250g of cannabis plant, 50g of cannabis plant cultivated by enhanced indoor means, 25kg of cannabis leaf, 2.5kg of cannabis resin and 500g of cannabis oil. The maximum penalties are a fine of 3,5oo penalty units (which is currently $385,000) and/or 15 years imprisonment for plant or leaf and 20 years imprisonment for resin or oil. These matters are dealt with in the District Court.
4. Large commercial quantity, being 1,000g of cannabis plant, 200g of hydroponic plant, 100kg of cannabis leaf, 10kg of cannabis resin and 2kg of cannabis oil. The maximum penalties are a fine of 5,000 penalty units (which is currently $550,000) and/or 20 years imprisonment for plant or leaf and life imprisonment for resin or oil. These matters are strictly dealt with in the District Court.

Cannabis Cultivation

It is an offence to cultivate, supply or knowingly take part in the cultivation or supply of a prohibited plant pursuant to s23 of the Drug Misuse and Trafficking Act 1985 (NSW). Cultivate is defined in the Act as including sowing or scattering cannabis seeds and planting, growing, tending, nurturing or harvesting cannabis plants.

The penalties for cultivating cannabis depend on the quantity of cannabis, whether the matter is heard in the Local Court or District Court and whether the cannabis was grown by an enhanced indoor means.

In NSW, there is a separate offence for cultivation by enhanced indoor means. This means cultivating cannabis inside a building or structure and applying enhancement via the application of artificial heat or light, nurturing the cannabis plant or root system  via nutrient enriched water or solution.

Quantity of Cannabis

1. Small is considered to be 5 plants for both indoor and outdoor cultivation or 30g of leaf
2. Indictable is considered to be 50 plants for both indoor and outdoor cultivation or 1kg of leaf
3. Commercial is considered to be 50 plants when grown indoors and 250 plants when grown outdoors or 25 kgs of leaf for both indoor and outdoor cultivation.
4. Large Commercial is considered to be 200 plants when grown indoors and 1,000 plants when grown outdoors or 100kgs of leaf for both indoor and outdoor cultivation.

Maximum Penalties

Cultivation of cannabis is an indictable offence which means that the maximum penalties are strictly above the jurisdiction of the Local Court.

However, the DPP can elect to have the matter heard in the Local Court if the amount is less than a Commercial quantity. Therefore, small and indictable quantities can be heard in the Local or District Court while Commercial and Large Commercial quantities can only be heard in the District Court.

Another qualification is that pursuant to s30(1) of The Drug Misuse and Trafficking Act 1985 (NSW), the Local Court needs to be “satisfied that on the balance of probabilities the number of plants or the amount of leaf is not more than a small quantity”.

However, pursuant to s23(a) of the Act both small quantities and indictable quantities may be heard in the Local Court.

The maximum penalties are therefore as summarised below

1. Small quantity heard in the Local Court is 50 penalty units (which is currently $5,500) and/or 2 yrs imprisonment. If heard in the District Court is 2,000 penalty units which is currently $220,000) and or 10 years
2. Indictable quantity heard in the Local Court is 100 penalty units (which is currently $110,000) and/ or 2 yrs imprisonment. If heard in the District Court is 2,000 penalty units (which is currently $220,000) and/or 10 years imprisonment
3. Commercial quantity is 3,500 penalty units (which is currently $385,000) and/or 15 years imprisonment
4. Large commercial quantity is 5,000 penalty units (which is currently $550,000) and/or 20 years imprisonment

Medical Cannabis

Cultivating cannabis for medicinal purposes is permitted under strictly controlled conditions. A medicinal cannabis or cannabis research licence allows the cultivation of cannabis within strict limits stipulated in government permits.