Offences Related To Cannabis In Western Australia
Cannabis is Australia’s favourite illegal drug, with around a third of Australians having consumed the drug in their lifetime and one in ten smoking it on a regular basis.
For thousands of years, the plant has been utilised for medicinal and recreational purposes but was subject to widespread criminalisation across the globe in the mid-20th century.
Western Australia retains a number of criminal laws dealing with cannabis consumption, including offences related to possession, supply, cultivation and importation.
The following outlines these key offences as well as potential defences that could be raised if you are charged with a cannabis-related offence.
The Offence Of Possession of Cannabis and the CIR Scheme
It is an offence under section 7(2) of the Misuse of Drugs Act 1981 (‘the Act’) to possess a ‘prohibited plant’ including cannabis. A person will be in ‘possession’ of a prohibited plant if it is within their exclusive custody or control.
This offence carries a maximum penalty of 2 years imprisonment or a fine of $2000 or both if taken to court. However, for eligible persons, WA Police may issue a ‘Cannabis Intervention Requirement’ notice or ‘CIR notice’ rather than a charge for a possession offence, allowing individuals to avoid a criminal conviction.
To be eligible for a CIR notice a person must be found using or in possession of less than 10 grams of cannabis. Adult offenders can only be issued with one CIR notice in their lifetime, whilst a young person (between 14-17 years old) can be given up to two CIR notices. A CIR notice will not be issued for possession of larger quantities of cannabis, cultivation offences or for possession of any quantities of cannabis resin or hash.
Once issued, a CIR notice requires a person to book and complete a Cannabis Intervention Session within 28 days of the notice. If this occurs, a person will avoid a criminal charge arising from their possession offence.
Offences For Growing Cannabis
It is also an offence under section 7(2) of the Act to ‘cultivate’ or grow a prohibited plant, including cannabis. Cultivating cannabis includes the sowing or scattering of seeds as well as planting, growing, tending to or harvesting cannabis plants.
This offence carries a maximum penalty of 2 years imprisonment or a fine of $2000 or both. As will be seen below, penalties are much higher if the amount of cannabis plants cultivated indicates an intention to sell or supply.
Offences For Sale or Supply of Cannabis
The offence of selling or supplying cannabis is outlined under section 7(1) of the Act. This offence will apply if a person:
- with intent to sell or supply cannabis or any prohibited drug obtainable from cannabis, to another person, has in his or her possession or cultivates cannabis; or
- sells or supplies, or offers to sell or supply, cannabis to another person.
Section 11 of the Act notes that if a person is in possession or cultivates the following quantities of cannabis there is a presumption that they intended to sell or supply the cannabis to another:
- 100 grams of cannabis leaf;
- 20 grams of cannabis resin;
- 80 cigarettes each containing any portion or cannabis; or
- 10 cannabis plants.
The presumption of an intent to supply is a rebuttable one and a person defending the charge would be required to provide evidence to prove they did not intend to sell or supply any portion of the cannabis possessed or cultivated.
The maximum penalty for committing an offence under section 7(1) of the Act is a fine of up to $100,000 or imprisonment for 25 years or both.
Offences For Importing Cannabis Under Commonwealth Legislation
More serious offences apply to the importation of cannabis into the country, which is covered by the Federal Criminal Code Act 1995 (Cth) (‘the Code’).
It is an offence under the Code to import a ‘border-controlled plant’ (including cannabis), with offences dependent of whether a commercial, marketable or lesser quantity is imported.
A commercial quantity of cannabis is 100 kilograms of dried leaf and a marketable quantity is 25 kilograms of dried leaf.
The maximum penalties for importation offences are:
- Imprisonment for life for importing a commercial quantity of cannabis (section 307.1 of the Code).
- Imprisonment for 25 years for importing less than a commercial quantity but more than a marketable quantity of cannabis (section 307.2 of the Code).
Imprisonment for 10 years for importing less than a marketable quantity of cannabis (section 307.3 of the Code).
Typical Defences To A Cannabis Charge
Defences that are raised against cannabis charges commonly include challenging the prosecution case that all elements of the offence have been established beyond reasonable doubt, or raising a formal legal defence.
Depending on the charge, defences commonly argued before the courts in WA include that:
• The accused did not possess, sell, cultivate, or import cannabis.
• The accused was an ‘innocent agent’ and had no knowledge of their participation in a cannabis-related offence.
• A formal legal defence applies including that the offending occurred as a result of duress or necessity.
If convicted of a cannabis offence, an experienced defence lawyer will make submissions to the court which mitigate the offending and aim to reduce the severity of the sentence which would otherwise be imposed by the court.
Need Legal Advice?
Andrew Williams is an experienced Criminal Lawyer and Barrister who can provide you with expert legal advice in relation drug offences in Western Australia.
Andrew offers a range of criminal law services and traffic law services in Perth, Fremantle and throughout Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.
Call Now: (08) 9278 2575
This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.
