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CANNABIS OFFENCES

CANNABIS OFFENCES

Cannabis means a plant or any part (including the seed) of a plant, of the genus cannabis. So it includes not only the heads (the female flowering tips or buds) but also leaves (and stems for that matter). This is important when considering the weights set out below. The way a prosecution is dealt with will depend on the weights involved. The weights will inevitably include at least head and leaf.

Cannabis oil and cannabis resin are separately defined. Cannabis oil is defined to be, in effect, a more potent version of cannabis resin.

Cannabis, cannabis oil and cannabis resin are declared to be "prohibited substances".

SIMPLE CANNABIS OFFENCES

Expiation notice and prosecution

A simple cannabis offence is an offence for which an expiation notice (a "CIN", or "cannabis infringement notice") must be issued before you can be prosecuted. If you pay the CIN you cannot be prosecuted. If you don't, a summons will issue and you will have to appear in court.

The expiation of an offence does not constitute an admission of guilt or of any civil liability, will not be regarded as evidence tending to establish guilt or any civil liability, and cannot be referred to in any report furnished to a court for the purposes of determining sentence for any offence.

If you wish to contest a CIN, you can elect to be prosecuted. In that event a summons will issue and you will have to appear in court.

If you elect to be prosecuted and are found guilty the maximum penalty is a fine of $500.00.

On the other hand, if you are prosecuted for a simple cannabis offence for which no expiation notice was given, the court would normally impose a fine equivalent to what the expiation fee would have been.

Simple cannabis offences

Simple cannabis offences include the following:

  1. the possession of a small amount of cannabis (100g or less, including any leaf) or cannabis resin (20g or less) for personal use. Personal use does not include sharing with or supplying to like-minded friends.  If you have more than these amounts in your possession you will be presumed, in the absence of proof to the contrary (on the balance of probabilities), to have possession for the purpose of sale or supply to another person;
  2. the smoking or consumption of cannabis other than in a public place. The inside of a motor vehicle or bus or other form of transport is deemed to be a public place, if the vehicle is in a public place. If you are caught smoking cannabis in your car but you are parked on a street, you will be taken to be smoking in a public place. You may then be prosecuted rather than issued with a CIN;
  3. the possession of equipment (eg. a pipe or bong) used for smoking, consuming or preparing cannabis for other than commercial purposes;
  4. the cultivation of 1 cannabis plant outdoors (ie. not by use of hydroponic nutrients or artificial light or heat).

Expiation fees (as at 4.11.03)

  1. Possession of cannabis:
  • if less than 25 grams: $50.00
  • if 25grams or more but less than 100 grams: $150.00
  1. Possession of cannabis resin:
  • if less than 5 grams: $50.00
  • if 5 grams or more but less than 20 grams: $150.00
  1. Smoking or consumption of cannabis or cannabis resin (other than in a public place): $50.00

  1. Possession of equipment (one or more pieces) for use in connection with the smoking or consumption of cannabis or cannabis resin (other than the possession of such equipment for commercial purposes): $50.00.

However, if the possession of the equipment is accompanied by another simple cannabis offence relating to the possession, smoking or consumption of cannabis or Cannabis resin: $10.00. So for example, if you were caught smoking cannabis from a pipe used for that purpose, the expiation fee would be $50.00 for possession of the pipe and another $10.00 for the smoking.

  1. Cultivation of 1 cannabis plant: $150.00.

MORE SERIOUS OFFENCES

These include:

  1. manufacturing or producing (cultivating) a prohibited substance (other than one outdoor plant);
  2. taking part in the manufacture or production of a prohibited substance;
  3. selling, supplying or administering a prohibited substance to another person;
  4. taking part in the selling, supplying or administering of a prohibited substance to another person;
  5. having a prohibited substance in your possession for the purpose of selling, supplying or administering it to another person.

The penalties depend on the circumstances and the amounts of cannabis, cannabis plants, cannabis resin or cannabis oil involved.

"take part" in manufacture, production, sale, supply or administration of a prohibited substance

You "take part" in these activities if you:

  1. take, or participate in, any step, or cause any step to be taken, in the process of manufacture, production, sale, supply or administration;
  2. provide or arrange finance for any such step in the process; or
  3. provide the premises in which any such step in that process is taken, or suffer or permit any such step in that process to be taken in premises of which you are the owner, or in the management of which you participate.

"for the purpose of sale"

In relation to possession offences, you are presumed to be in possession for sale or supply to another person if you are in possession of more than a threshold amount (the "prescribed amount"). The "prescribed amounts" are as follows:

  1. Cannabis: 100 grams
  2. Cannabis resin: 20 grams
  3. Cannabis oil: 2 grams.

If you are in possession of more than the "prescribed amount" you bear the onus of proving on the balance of probabilities (ie. that it is more probable than not) that you had possession for a purpose other than sale or supply.

The police sometimes allege production of cannabis "for sale". There is no such offence. Rather, the number of plants dictates the penalty. The greater the number of plants, the more aggravated or serious the offence.

Penalties

In imposing penalty a court must take into consideration matters including the following:

  1. the nature of the substance;
  2. the quantity;
  3. the personal circumstances of the convicted person;
  4. the commercial or other motives of the convicted person;
  5. the likely financial gain.

Any offence involving commerciality (sale) is likely to be dealt with very seriously indeed. Imprisonment may be difficult to avoid unless the amount is small and/or the circumstances exceptional.

The Act provides for graduated maximum penalties according to the amounts involved:

Penalty: a fine not exceeding $500,000.00 and imprisonment for a term not exceeding 25 years.

Amounts:

  • Cannabis plants 100 or more;
  • Cannabis resin 2 kilograms or more;
  • Cannabis 10 kilograms or more.

Penalty: a fine not exceeding $50,000.00 or imprisonment for 10 years or both.

Amounts:

  • Cannabis plants 20 or more but fewer than 100;
  • Cannabis resin 500g or more but less than 2 kilograms;
  • Cannabis 2 kilograms or more but less than 10 kilograms.

If you are charged with any of the above offences the charges cannot be prosecuted in the Magistrates Court but must progress through the Magistrates Court (via a "committal") to the District Court for trial or sentence.

Penalty: a fine not exceeding $2,000.00 or imprisonment for 2 years or both.

Amounts:

  • Cannabis plants fewer than 20;
  • Cannabis resin less than 500 grams;
  • Cannabis less than 2 kilograms.

These offences are classified as "summary offences" and can be prosecuted in the Magistrates Court.

Other penalties

The penalties become considerably more serious if you sell, supply or administer cannabis to a child (or take part in those activities), or are found in possession of cannabis for the purpose of sale, supply or administration within a school zone.

A child means a person under the age of 18 years. A school zone means the grounds of a primary or secondary school and the area within 500 metres of the boundary of the school.

Again, the penalty depends on the amount involved. The most serious offending of this nature carries a maximum penalty of a fine of $1,000,000.00 (1 million dollars) and 30 years imprisonment. The amounts of cannabis that invoke this penalty are:

  • Cannabis plants 100 or more
  • Cannabis resin 2.5 kg or more
  • Cannabis 10 kg or more

If the amounts are less than the above, the penalties are still a fine not exceeding $100,000.00 or imprisonment for a term not exceeding 15 years or both.

Cultivating cannabis for personal use

Where a person is found guilty of cultivating (producing) 10 cannabis plants or fewer and the court is satisfied that the person cultivated the plants solely for their own smoking or consumption, the person is liable to a penalty no exceeding $500.00.

In that case, the burden is on you to show that it is more likely than not that you cultivated the plants for your own use.

If you have been supplying (or selling) cannabis from the plants to your friends, you will not be able to prove that the plants were solely for your own use.

The size of the likely harvest is also an important consideration.

Further, if you grow and tend to plants together with another person at the same location, you will find it difficult to prove that the production was for your sole personal consumption.

Moreover, both you and the other person could be charged with producing or taking part in the production of the total number of plants.

You might find it difficult to establish, for example, that of 20 plants grown by you and another person 10 were yours and 10 belonged to your friend, and therefore you are both liable only to a maximum penalty of $500.00. You may find instead that both you and the other person are charged with jointly producing 20 plants.

Harvest and possession - anomalies

The relatively low penalty for producing 10 or fewer plants for your own use can change significantly once the plants are harvested, depending on the weight of the harvest.

Because the penalties are determined by weight (which might include retained moisture), anomalies can result. An example follows:

A person might grow 105 cannabis seedlings in pots. At that stage the person faces a penalty for cultivation in the maximum range.

Two weeks later, 40 plants might have died. If detected at this stage the person faces a penalty for cultivation in the middle range.

A few weeks later the person might have suffered some further losses and be left with 19 plants. The person now faces a penalty in the lowest range.

At the second and third stages of this example the plants might be carrying a quantity of leaf and head which is such that, if the plants were then harvested, a person possessing the harvested material would probably attract a penalty in a higher range than that attracted by the number of plants.

Moreover, the weight of the harvested material will depend upon the stage that drying has reached. The harvested material when weighed shortly after seizure might attract a penalty in the highest range, although when completely dried that material might only have attracted a penalty in the middle or lower range.

FURTHER INFORMATION 

This Information Outline is provided courtesy of Michael Dadds & Associates Lawyers who are a specialist in this area of law. They are located at 75 Gouger Street Adelaide SA 5000 or call them on 1300 132 674 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Michael Dadds and Associates specialize in all aspects of criminal law including Corporate Crime, Customs, Dishonesty, Driving, Drugs, Forensic Procedures, Sex Offences, Violence and Victims of Crime Applications. You can contact us 24 hours a day on 1300 132 674.

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