Other offences

The offences referred to in this chapter come under the Drug Misuse and Trafficking Act 1985(NSW) - the 'DMTA' - unless otherwise indicated.

Drug use equipment

It is an offence under the Drug Misuse and Trafficking Actto possess equipment with the intention of using it to consume drugs (section 11). The use must be future use. Evidence that the equipment has been used in the past is not relevant or sufficient to prove the charge (Erickson v Pittard[1976] 2 NSWLR 528). The prosecution must show that the equipment was illegally possessed. The law is the same as for possession - there must be knowledge and custody or control.

Injecting equipment

It is not an offence to possess a needle or syringe, whether it has been used or not (section 11(1A) of DMTA).

It is (technically) an offence to possess other injecting equipment, such as tourniquets, spoons, and swabs. In practice, possession of this equipment is not prosecuted.

Sale of bongs and pipes

It is an offence to sell, supply or display for sale a bong or ice pipe, or the component parts of a bong or pipe, whether or not the bong or pipe was intended to be used to administer a prohibited drug (section 11A of DMTA).

Offences involving prohibited plants

The cultivation or possession of prohibited plants, such as cannabis, is an offence under section 23 of DMTA.

It is an offence under section 23(1) to:

  • cultivate
  • knowingly take part in the cultivation of
  • possess
  • supply

a prohibited plant.

What is included?

Cultivation is defined to include sowing seed, planting, tending, nurturing or harvesting (section 3, DMTA).

Watering a plant, shading it from the sun, picking the heads off a friend's plant, even watering ungerminated seeds, all come within the definition of cultivation.

And possession of plants is also an offence under the same section and with the same maximum penalty as for cultivation. There may be no evidence of cultivation, but evidence of possession (again, requiring proof of knowledge and custody or control) of the plants, in which case that should be the charge laid.

Quantities

The penalty categories for cultivating cannabis depend on the number of plants, not their gender or size. Cultivating a hundred seedlings that can fit into a baking tray is charged the same as cultivating a hundred mature female plants. Having 250 seedlings is regarded as more serious than having five big plants, even though the weight of the five big plants may be many times greater. However, the size of the plant would normally be taken into account in sentencing.

Higher penalties apply to offences involving the cultivation, supply and possession of a 'commercial quantity' of prohibited plants.

Defences to cultivation

It is a defence to a charge of cultivation of a prohibited plant if the accused can establish that they did not know the plant was a prohibited plant. The accused must inform the court if they propose to give such evidence (section 23(4)(a)(i) DMTA). The onus of proof in this situation is on the accused (section 40A(2) DMTA).

The prosecution may rebut the accused's evidence by bringing, with leave of the court, evidence of any previous convictions (section 23(5) DMTA).

Hydroponic cultivation

Section 3 (DMTA) defines 'cultivation by enhanced indoor means' to be cultivation that occurs:

  • 'inside a building or structure' and
  • involves the nurture of the plant in nutrient enriched water or application of artificial light or heat or suspending the roots and spraying them with nutrient solution.

Section 23(1A) of the DMTA prohibits the 'cultivation by enhanced indoor means' of five or more plants (but less than 50 plants) for a commercial purpose. 'Commercial purpose' means intending to sell or believing that another person intended to sell - section 23(6). [Note that the offence of (outdoor) cultivation of cannabis in section 23(1) does not involve any requirement to prove a commercial purpose.]

So the offence requires the cultivation to be:

  • inside a building or structure and
  • involve growing the plant in nutrient enriched water or applying artificial light or heat or suspending the roots and spraying them with nutrient solution and
  • involve five or more plants and
  • (if there are less than 50 plants) be done with the intention to sell (or the belief that another person intends to sell) the cannabis produced.

If there are more than 50 plants, the prosecution does not have to prove a 'commercial purpose' (that is, the intention to sell).

Offences under section 23(1A) are strictly indictable. They must be dealt with in the District Court.

Offence categories

There are now two entries for cannabis as 'prohibited plants' in the Schedule 1 of DMTA ('cannabis cultivated by enhanced indoor means' and 'cannabis cultivated by any other means'). The relevant offence categories in the Schedule 1 are as follows:

 

Traffickable quantity

Small quantity

Indictable quantity

Commercial quantity

Large commercial quantity

Hydro

-

5

50

50

200

Outdoor

-

5

50

250

1000

Maximum penalties

The maximum penalties for cannabis cultivation are shown in the table below:

 

Quantity Maximum penalty Section

Less than 'small' quantity (less than 5 plants)

Summarily: $5,500 and/or 2 years' imprisonment

On indictment: $$220,000 and/or 10 years' imprisonment

Section 30 (3)

Section 32(1)(h)

5-49 plants and 50-199 plants

$385,000 and/or 15 years' imprisonment

Section 33(2)(b)

Large commerical quantity (more than 200 plants) $5550,000 and/or 20 years' imprisonment Section 33(3)(b)

Exposing a child to indoor cultivation

Section 23A(1) DMTA makes it an offence to cultivate 'a plant' (note the singular) by enhanced indoor means and 'expose a child' to the cultivation process or to substances stored for use in cultivation.

The maximum penalty for an exposing a child offence involving one to four plants is a fine of $11,000 and two years' imprisonment if dealt with summarily, or a $264,000 fine and 12 years' imprisonment if heard on indictment.

The maximum penalty for an exposing a child offence that involves 5 to 199 plants is a $462,000 fine and 18 years' imprisonment. The maximum penalty for an exposing a child offence that involves 200 or more plants is a $660,000 fine and 24 years' imprisonment. These offences are wholly indictable.

It is a defence if the defendant can prove that the exposure did not endanger the health and safety of the child. A child is a person under 16 for the purposes of these provisions.

Manufacturing drugs

It is an offence to manufacture, or to take part in the manufacture of, a prohibited drug, under section 24 of DMTA.

The maximum penalty for manufacture of a prohibited drug depends on the quantity involved, with the same penalties applying as for supply offences involving comparable amounts.

The maximum penalty for manufacturing an indictable quantity of a drug is a $220 000 fine and 15 years' imprisonment.

For manufacturing a quantity of drugs in the commercial range, the maximum penalty is a $385 000 fine and 20 years' imprisonment, and for a large commercial quantity, fines of $550 000 and life imprisonment.

Possession of precursors

It is an offence under section 24A to possess a 'precursor' intended to be used in the manufacture of a prohibited drug. Substances defined as precursors are listed in Schedules 1 and 2 Drug Misuse and Trafficking Regulation 2006 (NSW). The Regulation also provides that, for legitimate uses, records must be kept for any storage or supply of precursors, including an 'end user certificate' which includes the name and address and proof of identity of the end user.

The maximum penalty for this offence is a $220 000 fine and/or ten years' imprisonment.

Knowingly take part in cultivation, manufacture or supply

It is an offence to 'knowingly take part in' the supply, cultivation, or manufacture of a prohibited drug or plant (sections 23, 24, 25 of DMTA).

'Taking part in' manufacture, cultivation, or supply is defined in section 6 to mean:

  • the person takes, or participates in, any step, or causes any step to be taken in the process of manufacture, cultivation or supply; or
  • the person provides or arranges finance for any step in that process; or
  • the person provides the premises in which any step in that process is taken, or suffers or permits any step in the process to be taken in premises owned, leased, occupied or managed by the person.

A person may be considered to be taking part in supply, for example, if they arrange or provide finance or provide premises, or allow their premises to be used for selling or distributing or growing drugs. It would also include making a telephone call to arrange a meeting or allowing their house to be used for a meeting at which supplying drugs is discussed.

The participation must be done 'knowingly'. Proof that a person suspected that somebody else might be involved in drug offences is not proof of knowledge; but knowledge may be inferred if someone shuts their eyes to suspicious circumstances (R v Thomas (1976) 63 Cr App R 65).

Similarly, the word 'permits' means the owner or controller of the premises knew or had grounds for reasonable suspicion that the premises would be used by someone for that purpose, and was unwilling to take reasonable measures to prevent it (Sweet v Parsley [1970] AC 132 at 165).

Drug premises

Drug premises are premises used for the supply or manufacture of prohibited drugs or the commercial indoor cultivation of cannabis under section 139 of the Law Enforcement (Powers and Responsibilities) Act 2002(NSW).

It is an offence to be found on or entering or leaving drug premises. It is also an offence for an owner or other occupier to allow property to be used as drug premises, or for a person to organise or conduct drug premises, or to assist in the conduct of drug premises (for example, as a lookout or door attendant).

Any place where there are five or more indoor cannabis plants being grown for profit is capable of being a drug premises, exposing occupants and visitors to prosecution for offences such as entering or being on drug premises.

Proving the case

A court must be satisfied beyond reasonable doubt that premises are drug premises before finding a person guilty of these offences.

The prosecution does not have to prove that drugs were found on the premises or in the possession of any person. The court can have regard to matters such as evidence of any obstruction of or resistance to a police search, the physical security of doors and entrances, the type of lighting employed, electricity consumption, exhaust fans and fertilisers, any documents, firearms or large sums of money found, or the presence of drug-affected people.

Importing and exporting

It is an offence to import, or try to import, prohibited drugs (section 307.1 Criminal Code).

The prosecution must prove that the accused intended to import the substance. In other words, a person will be acquitted if they did not realise that they were carrying drugs (He Kaw Teh v R (1985) 157 CLR 523).

It is also an offence under the Criminal Code to assist or be knowingly concerned in any illegal importation of drugs. The prosecution must prove that the accused was fully aware of what was going on and performed some act such as providing money. Mere knowledge or inaction does not establish the offence.

Cannabis laws in other states

Some states and the territories have implemented automatic penalties for less serious cannabis offences. This is sometimes misleadingly referred to as 'decriminalisation'. The details vary, but the general idea is that police can issue you with a form of infringement notice to pay a set fine within a specified time.

If you pay the fine, there is no further action and no conviction recorded against you.

If you do not pay the fine, the enforcement action that can be taken depends on the legislation of the state or territory.

In all states and territories, offences that involve a larger quantity of cannabis are dealt with by the court, and would - if proven - usually lead to conviction.

Drugs in sport

Sporting associations have a general right to make rules for the conduct of organised sporting competitions. Those rules are binding, on the basis of a contract, on players who want to participate in those organised competitions.

At elite levels, the rules always include the right of sporting bodies to require players to have a drug test for performance enhancing drugs like anabolic steroids, in and out of competition. Some sports also test for recreational drugs.

The general principle is that if an athlete refuses or fails a drug test, the sporting bodies are entitled, subject to their own constitutions and rules of procedural fairness, to suspend or ban the player.

Australia has ratified the International Convention Against Doping in Sport, in force since 2007.