Cannabis Offences and Penalties in New South Wales (NSW)

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The state of NSW maintains strict legislations and penalties for all those guilty of dealing with a prohibited plant. The penalties for any of these offences depend on;

• The type of violations or
• The amount of the prohibited plant found with the accused
• The presence of aggravating circumstance (in the presence of a child, use of violence)
• Committing the offence while receiving punishments from a previous offence

There are many examples of prohibited plants as defined by the Drug Misuse and Trafficking Act 1985 (NSW). It gives a prohibited plant as;

• Cannabis plants cultivated using enhanced indoor means (non-natural)
• Cannabis plant cultivated through any other means
• Other psychoactive substances.

Also, Cannabis in this section includes; Cannabis leaf, resin, dried extracts or any other forms of street slang it is expressed.

The Drug Misuse and Trafficking Act 1985 (NSW) and other relevant legislation provide description and guidance on the legal procedures and punishments for drug offences.

If an individual is convicted for a cannabis offence, the offence will show up as a disclosable court outcome (DCO) on a NSW Criminal History Check certificate.

Penalties for Drug Offences

Drug offences can be heard Summarily or as indictable offences depending on the severity of the Charge. It is also possible for NSW courts to alter the courts or Drug offence charges depending on what they interpret the Charge.

Supply/Trafficking of Cannabis

Section 25 of the Drug Misuse and Trafficking Act 1985 (NSW) makes it an offence for a person to Supply a Cannabis plant. Together with other prohibited plants, the offence incurs punishments between;

• 2000 penalty units and/or ten years imprisonment for quantities less than commercial amounts
• 3500 penalty units and/or 15 years imprisonment for not less than the commercial quantity
• 5000 penalty units and/or 20 years imprisonment for not less than a large commercial quantity

If the supply was to a person under 16 years, the Act stipulates 4200 penalty units or 25 years imprisonment.

• It is considered a supply offence if the accused person was in possession of a trafficable quantity or
• Had such quantity of Cannabis for the intention of supply

The only defence from this Charge is where the accused person can prove that the amount was for purposes other than supply.

The offence of Cultivating Cannabis

It is an offence to grow or cultivate Cannabis unless through a federal licensing scheme or order. Section 23 of the Act stipulates a person to have committed an offence under the Drug Misuse and Trafficking Act 1985 (NSW).

Cultivating a prohibited drug is an offence that incurs between 10 years and 20 years imprisonment depending on the amount of Cannabis cultivated.

Possession of Cannabis

It is a criminal offence to possess Cannabis. It includes where the accused person;

• Hides the substance for another person
• Allows their premise to be used to keep Cannabis or other substance
• Keeps Cannabis in any other of their property
• They are found with Cannabis plants, extracts or supplements.

The punishment for a summary offence incurs;

• 20 penalty units and/or
• Two years imprisonment

Administration of Cannabis to self or others

Section 13 of the Drug Misuse and Trafficking Act 1985 (NSW) prohibits all unlicensed (illegal) administering prohibited substances to others. The offence incurs a penalty of 20 penalty units and/or two years imprisonment if heard by a Local Court.

The penalties are higher if they are for indictable convictions.

Manufacture or Production of a prohibited Drug

It is a gross violation to knowingly or recklessly take part in the manufacturing or producing of a prohibited drug. It is a matter of aggravation that the accused; manufactures or participates in a child's presence. However, it may be a defence favouring the defendant if they prove that such exposure did not affect the child.

The punishment for such an offence is made severe by the amount of substance the offender held at the time. The court may also acquit the person of a more grievous offence of prohibited drug manufacture if it is convinced the person did not possess up to the quantity.

Conspiring to commit or aid an offence outside of NSW

Section 28 of the Drug Misuse and Trafficking Act 1985 (NSW) describes an offence that conspires or agrees with another to participate in a drug offence. It is also an offence if the crime is outside NSW, and any of the conspirators are within the state.

The person is also guilty if they advised, inspired, aided or procured the offence in any place outside NSW. This offence attracts penalties equal if the person commits such an offence.

The punishments include any or all of;

• Payment of fines,
• Forfeiture of Substance or proceeds from such,
• Imprisonment term under the law.

Trafficable quantity

A person is guilty of a drug trafficking offence if they were found in possession of Cannabis that is as much or more than the trafficable quantity under the law. Also, a person is considered guilty of trafficking a drug if they possess a "trafficable quantity”.

However, it may be a defence of assuming a person to traffic a prohibited substance if they prove that the drug in their possession was for purposes other than supply.

Possession of precursors or materials for manufacturing the drugs

It is an offence for possession to get possession of a precursor or an apparatus used to manufacture drugs. It also includes cases where the person possessed any of these instruments to manufacture, produce or process the drugs.

However, it is a defence in court if the accused possesses such precursors for;

• Activities not unlawful under NSW legislation
• There was a reasonable and legal excuse to possess such precursors.

The offence of Cannabis cultivation using enhanced indoor means

It is illegal to cultivate Cannabis for a commercial purpose using any artificial or indoor means. It is an offence that incurs penalties of up to 15 years imprisonment if more than five cannabis plants were cultivated at the time.

However, the argument of the prosecution must be water-tight to prove that the accused person intended to commercialise the cultivation.

Cultivating Cannabis indoor does not necessarily mean in a closed space; it includes engaging in any of the following actions;

• Using artificial heat or light to process the plant,
• Nurturing the plant in conducive and nutrient-enriched water,
• Suspend the plant's root and improve with nutrients

The offence of enhanced cultivation of Cannabis plant incurs penalties ranging;

• 15 to 20 years imprisonment and/or
• 385,000 to 20 years imprisonment

It is a matter of aggravation for a person to commit the offence before a child. Depending on the quantity of prohibited plant cultivated, the punishments for such aggravation can range between

• 12 years and 24 years imprisonment if the matter was handled in a higher court (District court)

And/or

• $264,000 to $660,000 in fine amounts depending on the severity of the offence.

What are the relevant drug quantities?

The primary determinant in the severity of a drug offence involving Cannabis is the amount of Cannabis leaf or supplement found in the person's possession.

The quantities that distinguish cannabis offences under NSW law are as follows;

• ✔ Small quantity offence includes greater than 30g and less than 300g of Cannabis (5 plants for cultivation offences)
• ✔ Trafficable quantity offence includes amounts of Cannabis greater than 300g but less than or equal to 1000g
• ✔ Indictable quantity offences include amounts of Cannabis greater than 1000g but less than or equal to 25000g.
• ✔ Commercial quantity offence includes cannabis offences where the amounts are greater than 25kg but less than or equal to 100kg.
• ✔ More than 50 plants were involved in a commercial quantity for the Cultivation offence.
• ✔ Large Commercial quantity offences include Cannabis greater than 100kg (200 plants for cultivation offences).

What the prosecution must prove in the offences

Cannabis offences can either be treated summarily in a Magistrate (Local) court or indictably in a higher court (District) Court. The Smaller courts usually hear smaller cannabis offences and impose penalties not more significant than two years imprisonment.

The court may also substitute these penalties for fines where it considers an imprisonment term too harsh for the offence.

However, for commercial or above dealings with Cannabis, only a District court or similar can handle such matters.

For all other quantities of Cannabis that constituted the offence, the DPP or the accused can prefer to have the matter dealt with in a District court. Where there is no election for such, the matter will proceed normally in a Local Court.

Importing and Exporting Cannabis

Cannabis is a regulated and controlled drug and cannot be moved without compulsory licenses or permissions. Division 307 of the Commonwealth Criminal Code Act prohibits the import or export of Cannabis within NSW.

Like all other cannabis offences, the penalties depend on the amount of Cannabis that is imported or exported. The penalties can range between;

• ✔ Ten years to life imprisonment and/or
• ✔ 2000 penalty units to $750,000 in fines

Punishments for Indictable Cannabis offences

It is a serious matter to be convicted by a District court of a cannabis offence; it means you were convicted for an indictable matter. The punishments such courts can impose range between;

• 2000 penalty units and/or ten years imprisonment for quantities less than commercial amounts
• 3500 penalty units and/or 15 years imprisonment for not less than the commercial quantity
• 5000 penalty units and/or 20 years imprisonment for not less than a large commercial quantity.

Will a Cannabis Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a cannabis offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a police check online via the Australian National Character Check - ANCC® website.

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