Saturday 17 September@ Nimbin Town Hall
10 am : Legal Advice
Speaker: Steve Bolt, Solicitor & Author
About: Legal Advice including Roadside Drug Testing and Medicinal Cannabis
Sunday 18 September@ Nimbin Town Hall
10 am : Cannabis Laws and Legislation
Speakers: Steve Bolt, Solicitor & Author, and David Shoebridge, Greens MLC NSW
About: From strip searches at festivals and your friendly sniffers dogs, to medical cannabis being the only prescribed medicine which makes it illegal to drive, join Steve and David for a journey into many cruel and unusual laws running rampant in contemporary Oz.
SOME LEGAL ADVICE ABOUT CANNABIS
Cannabis is a “prohibited drug” under NSW law.
Any activity involving cannabis – possessing it, using it, growing it or supplying it – is illegal. There are different offence categories determined by amount, from “small quantity” to “large commercial”. As an obvious general rule, the larger the quantity involved, the more serious the offence and the higher the likely penalties.
Cannabis offences in NSW are usually dealt with in court. You might qualify instead for a police cannabis caution. Cautions only apply to possession of 15 grams or less of bud. Cautions are discretionary. There are some rules – such as not having a prior record, and not having more than 2 previous cautions.
Cannabis is now theoretically legally available for medicinal purposes but you have to go through a pretty complex process to get a prescription. Only a few medicinal cannabis users have been able to obtain legal prescriptions so far. If you do not have a prescription, the same laws apply to cannabis used for medicinal purposes as for cannabis used for other reasons.
Driving and saliva testing
It is an offence to drive a vehicle with the presence of THC, methamphetamine, MDMA or cocaine in your saliva. The penalty is a fine and disqualification of your licence. The police do not have to prove that you were impaired by the drug, only that the drug was present. (There is a separate offence of driving under the influence.) THC can be detected in saliva for days after using it.
The police can legally randomly stop and drug test drivers. If the initial saliva swab shows positive, you are arrested for a second test. The police take a saliva sample and use a machine for preliminary analysis. If the machine shows positive, the police give you a notice not to drive for 24 hours. But either way, the sample is sent to the government laboratory for analysis.
If the result comes back positive to THC, police will issue an on the spot fine and 3 month driving disqualification. You then can elect to take the matter to court if you want to challenge the penalty (or the finding of guilt). Going to court and pleading guilty with a good driving record might mean no conviction being recorded, and so you keep your licence. However, you can only receive the benefit of that provision once every 5 years. It is a defence to this charge if the court accepts that you had an honest belief that you did not have THC present in your saliva at the time you were driving, and that belief was held on reasonable grounds.
To prove possession, the police must prove beyond reasonable doubt that you had the cannabis in your custody or under your legal control, and you knew you had it. Depending on the circumstances, it might (or might not) be difficult for the prosecution to prove that you knew about the presence of the drug – which is why it is usually a good idea not to say anything to police if they question you. In cases where more than one person has access to the cannabis – for example, in a shared house or in a car with several passengers – the police must rule out, beyond reasonable doubt, the possibility that someone else was the one in possession.
Supply includes selling, giving away and agreeing to supply. Sharing cannabis is supply. Supply is treated as a serious offence and of course the penalties get quite severe for supply on a commercial scale. If the police prove that you were in possession of 300 grams or more of cannabis, you are “deemed” to be in possession for supply and you must prove otherwise (for example, that it was for your personal use). Charges involving higher amounts are dealt with in the District Court where higher penalties apply and jail is more likely.
Cultivation and possession of plants
Cultivating means some activity to assist growing or harvesting the plant such as planting or watering or fertilising. But there is also an offence of possessing cannabis plants, where for example, the plants were grown on your property with your consent. The same penalty range applies for cultivation or possession of plants. There are higher maximum penalties – and trial by judge and jury – for cultivating or possessing more than 250 plants (outdoors). Cases involving fewer than 250 plants are heard by a magistrate in the Local Court.
There is a separate offence of cultivating “by enhanced indoor means” (that is, hydroponically). The maximum penalties are higher than for cultivating an equivalent number of outdoor plants.
The law sets out maximum penalties for the different offences, but the actual penalty imposed in a particular case depends on all the circumstances. 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 expect a reduced penalty for pleading guilty. The penalties available includes fines, good behaviour bonds, intensive corrections 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”). This might be applied where the quantity is small and the person’s record is very good.
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 a jail term.
What can the police do?
You do not have to say anything to the police, whether you have been arrested or not. You might say something like, ‘I do not wish to say anything until I get legal advice”. Beware of small talk and being lured into a conversation. Just tell them your name 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.
Police are legally entitled to enter and search private property only 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, or search your vehicle, without a warrant, if the police believe on reasonable grounds that you might be in possession of cannabis (or other prohibited drug).
The police sometimes use sniffer dogs for drug detection. In some places (such as in licensed premises, at music festivals, and on trains and buses), the police can use sniffer dogs without a warrant. Otherwise – for example for general street operations – police need a warrant to use a sniffer dog.
The best advice? TAKE CARE !!
Steve Bolt, Solicitor