Sale/Trafficking of Cannabis

It is an offence to traffic cannabis.

The maximum penalty for trafficking cannabis varies depending on the number of plants you have. For sentencing purposes trafficking cannabis offences are classified as follows:

Large Commercial Quantity: 2 kg
Commercial Quantity: 1 kg
Trafficable Quantity: 250 g

Large Commercial quantity: $500,000 fine or imprisonment for life or both
Commercial quantity: $200,000 fine or imprisonment for 25 years or both
Trafficable quantity: $50,000 fine or imprisonment for 10 years or both
Traffic in a prescribed area: $75,000 or imprisonment for 15 years or both

It Is Not Cannabis
Section 4 of the Controlled Substances Act 1984 defines cannabis as: a plant, or any part (including the seed) of a plant, of the genus cannabis, but does not include cannabis resin or oil. Thus, you will have a complete defence to this charge if it can be shown that the plant or plant matter in your possession was something other than cannabis.

It Was Not In Your Possession
In order to prove possession, the Prosecution must show that you:

• were in physical control of the cannabis, and
• had the knowledge (or intention) of having the cannabis.

You may have a defence to this charge if either of these elements are in doubt.

It Was In Your Possession For Personal Use
It may be the case that you are a heavy user of cannabis and, despite having what the legislation declares to be a trafficable quantity, it was in your possession for your own consumption. If there is evidence to support this claim, then it may be possible to have the charge downgraded to a lesser offence.

You Did Not Intend To Sell The Cannabis
If there is evidence to suggest that you had no intention of selling the cannabis, and you instead had some other purpose for it (e.g. you had planned to simply give it away), you may have a defence to this charge.

It Is Not A Trafficable Quantity
Schedule 3 of the Controlled Substances (Controlled Substances, Precursors and Plants) Regulations 2000 sets the prescribed quantity of cannabis for a trafficable offence at 250g. If you have less than 250g, then you may be successful in having the charge downgraded to a lesser offence.

There Were Was Only One Element of Transaction
If someone has paid you money with the intention of engaging in a transaction of sale of the cannabis, but your intention was to obtain money without exchanging it for the cannabis, you may have a defence to this charge.

Duress
It is a complete defence to this charge if we can show that you were acting under duress; that is: you were acting as a result of violence, or some other threat, against you. We would need to present evidence that shows you were coerced into the act by a third party, effectively rendering you an instrument of someone else’s criminal conduct and thus displacing the responsibility for your actions.

Mental Impairment
The law recognises that, in some cases, people will not be capable of evaluating the nature and quality of their conduct, or, more categorically, they will not know what they are doing is wrong. If it can be shown that you were suffering from some sort of mental disease, disorder or disturbance, as distinguished from a mere lack of self control or impulsiveness, then you may have a defence to this charge.

Mental impairments may be either transitory or permanent and have been held to include disorders such as:

• Schizophrenia
• Hyperglycaemia
• Psychomotor epilepsy
• Cerebral arteriosclerosis

The Prosecution must prove that you:

• sold the cannabis; or
• had possession of the cannabis with the intention to sell it; or
• took part in the process of sale.

Section 32(5) states that, if it is proved that you were in possession of a trafficable quantity of cannabis, the intention to sell that cannabis is presumed. The Court is to assume that you had the drugs in your possession for the purpose of supply because there is more drugs than you would be to use yourself. This presumption can be set aside if you can show that the drugs were in your possession for a reason other than supply. A reason may be that you had the drugs for your own personal use.

There are two elements to prove possession:

• being in physical control of the drug, and
• knowledge (or intention) of having the drug.

Deciding whether or not to plead guilty has important implications and should be made after proper discussions with a criminal lawyer. Please come and see the helpful team at Caldicott Lawyers for assistance in your matter.

This legislation comes from section 32 of the Controlled Substances Act 1984.