• In NSW all cannabis-related matters are treated as criminal offences including for mere possession and use. If you are found in possession of cannabis in NSW you can theoretically be sentenced to a fine or imprisonment and receive a criminal conviction.
• In practice, where you have been caught with 15 grams or less of cannabis police can exercise their discretion to issue up to two cautions or diversions. Diversions require those caught to attend education, assessment and treatment programmes. Other preconditions for eligibility include:

1. that you admit possessing;
2. only for personal use;
3. you were not involved in any other criminal offence at the time; and
4. you have no prior convictions for drugs, violence or sexual assault.

• Since late January 2019 police can issue an on-the-spot penalty notice if you are caught in possession of an illegal drug. If the pay the fine you will not be required to attend court and you will not have a criminal conviction.

• If you are under arrest the police are allowed to search you.
• If you are not under arrest the police do not have the right search you unless:
• you consent or 
• they have a warrant.

• Diversion programs apply before any formal charges are laid. 
• They are designed to divert eligible offenders into treatment or education programs

• The police usually decide whether to offer diversion to an offender or formally charge them.
• Juvenile offenders or those who have a history of drug or violent offences are not eligible for diversion. 

• Diversion programs include:
• police run rug diversion programs; 
• court-ordered diversion programs; and
• drug treatment centres.

• Trafficking means producing, selling or supplying a drug.
• It also applies to activities that may assist in the producing, selling or supplying of a drug.

• The type and amount of the illegal drug or the number of illegal plants seized.
• Whether this is your first offence and what your criminal history is.

• Objects that police will identify to indicate you were selling or intended to sell illegal drugs include:
• a large number of small plastic bags;
• drugs separated into individual lots;
• large amounts of cash;
• telephone intercepts by police;
• surveillance by police;
• a list of clients;
• unexplained assets;
• unexplained large financial transactions; and
• large amounts of gold jewellery.

• Cultivating means anything associated with planting or growing a cannabis plant.
• It includes:
• germinating a seed;
• planting;
• tending;
• nurturing;
• harvesting;
• watering;
• protecting from the sun; and
• picking the heads off a cannabis plant.

• Any seized drugs are initially analysed by police forensic scientists to ascertain the purity and weight of the drug. 
• Those findings are documented in a statement that can be used in evidence against the accused.
• The drugs are then destroyed.

Question

I was arrested after a raid at a nightclub. I had some pills on me but they weren’t for my use. They belonged to a friend. Am I guilty of possession?

Answer

• Possession means that you had the drugs in your immediate physical possession and control, such as in your pockets.
• It does not matter that the drugs were not for you or that you were holding them for a friend.

Question

I used to live in a share house with some friends. We all smoked pot recreationally and occasionally would chip in to buy a quarter-ounce from a friend of mine to share. I never made any profit from this arrangement. I was just the contact person. Was I technically trafficking?

Answer

• Trafficking involves the sale or supply of any quantity of drugs.
• It does not matter that you did not make a profit. On those facts you could be charged with trafficking cannabis.

Question

I’m facing a drug charge for possessing amphetamine. I have an overseas trip planned at the end of the year. If I’m convicted will that affect my ability to travel overseas?

Answer

• Convictions for drug offences can affect your ability to obtain visas to travel to certain countries.
• For example the rules are very strict in relation to entering the USA if you have a conviction or a finding of guilt against you in relation to a drugs charge.
• A criminal lawyer will be able to assist you in preparing your criminal case and obtaining a non-conviction depending on your circumstances. They will also be able to advise you about the impact of the result and whether that will affect your travel plans.

Questions

My son has been charged with trafficking a commercial quantity of cannabis. I knew he was growing a few plants but I thought they were just for his own personal use. How do we find a good lawyer? How serious are these charges?

Answer

• The rules are different depending on which state or territory you are in. Trafficking charges are more serious and can have significant consequences including imprisonment.
• It is very important that your son engages a lawyer in your area who specialises in criminal defence matters.
• A lawyer will be able to look at all the evidence the police have gathered against your son. They can then advise you about the strength of the police case and any defence your son has.
• They will also be able to assist you in negotiating with the police about pleading guilty to a lesser charge such as possession where appropriate.

Question

I have an ongoing medical condition and the only thing that gives me any relief is to smoke a bit of weed. Can I be charged with possessing or using marijuana?

Answer

• Possessing a drug involves having the drug in your possession or control.
• Using a drug involves taking or inhaling a drug.
• While some may sympathise with your medical situation using cannabis for medical purposes is not a defence to possessing or using cannabis in most states and territories. You may still be charged with drugs offences.

Question

My daughter has been charged with possession of cocaine. The police have charged her but we still haven’t been told whether the drugs they seized were actually cocaine or not. Don’t they have to wait until lab tests prove it is cocaine before they charge her?

Answer

• Police will conduct a preliminary drug test to ascertain what drugs has been seized. They will then send the drugs to a police forensic laboratory for testing by a forensic scientist.
• The forensic scientist will analyse what the drugs are made up of. Usually street drugs are not ‘pure’ and have been cut with other substances such as baking soda or talcum powder.
• The forensic analysis will state what has been found and the purity of the drugs.
• Police do not have to wait for this formal analysis before filing charges. It is sufficient that the formal forensic scientist’s report is available before the matter is heard in court.