Last Update: December 31, 2008 3:06 PM

Legal Information

Pot & The Law

Under NSW law, it is an offence to possess, use, supply, or cultivate pot. It is also an offence to possess implements for the use of pot.

Possession

To be convicted of possession, the police must prove that you had knowledge of the pot and custody or control over it. In other words, there must be proof that:
you had the pot in your physical custody (for example, in your pocket or bag), or at least under your control (such as in a locker you have the key to)
and
you that knew that you had the pot in your custody or control.

Supply

Supply includes selling, giving away or (technically) sharing pot.

Supply also includes being in possession of 300 grams or more of cannabis, which is “deemed” to be for supply. In that case, to avoid a supply conviction, you must prove in court that the possession was for reasons other than supply (for example, personal use).

Cultivation

Cultivation means some activity to assist the growing or harvesting of cannabis, such as planting or watering or fertilising. Even growing one seedling is a cultivation offence. The more plants, the higher the penalty. If you are charged with cultivating 250 plants or more, the case must be dealt with in the District Court where higher penalties apply. Less than 250 plants will generally be dealt with in the Local Court.

Hydroponic plants

A solicitor's eye view of the 2006 hydroponics provisions in the NSW cannabis laws

Cookies

Possessing or supplying cannabis cookies or other food with cannabis cooked in it is illegal. Bizarrely perhaps, the drug law strictly treats cookies as if they were pure cannabis. So, because weight determines the nature of the criminal charge, you can 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 often would charge you only with possession.

Implements
It is illegal to possess a bong, a pipe or other implements for consuming pot. It is only illegal to possess implements for the future use of a prohibited drug. So do not admit to the police that you intended to use the bong or pipe to smoke pot.

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.

Police cautions

Police have a discretion to issue cautions (rather than take you to court) on possession or use charges where the amount of pot involved is 15 grams or less, and where you have no prior convictions, you admit guilt and you are not charged with another offence. If you are cautioned twice, you must attend compulsory drug counselling. On the third occasion, the case must go to court.

Search warrants

Police are legally entitled to enter private property if they are invited in by one of the occupiers or if they have a search warrant.

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.

Personal searches

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). If the police want to search you, the best general advice is to tell the police you do not consent to a search and ask them to record that you do not consent (so that it is then possible to argue in court that the search was unreasonable). Do not physically resist the search, because that could lead to additional charges.

Random Roadside Testing

The police do not yet have the power to conduct randomly drug test car and truck drivers, although the NSW Government has announced it will change the law to allow random roadside saliva testing of drivers for cannabis, amphetamine and ecstasy.
Because the law is not yet introduced, there is no information available on the details of how the testing will be work, such as penalties. Victorian police have been conducting random roadside drug testing since 2004.

Sniffer dogs

Generally speaking, it is legal for police to use sniffer dogs.

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 the air near a person does not amount to searching.

Penalties
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 would be a fine of $11,000 and/or 2 years jail. The maximum penalty for cultivating 300 plants would be 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 most common penalty for possession of small amounts of pot is a fine of several hundred dollars. For cultivation of a few plants, a fine or a good behaviour bond. If you have more of a record, or if larger quantities are involved, or if you are convicted of supply, you can expect higher penalties.

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