You are here: Home » Blog

Blog Content

US President Expunges Federal Criminal Convictions for Cannabis Possession

In a move that signals major change in United States drug policy, President Joe Biden has ordered the expunction (deletion) of all past federal convictions for the possession of cannabis.

Pre-election pledge

The promise to pardon the thousands of Americans convicted of the offence and remove offences of, and relating, to the possession of cannabis is one the president appears to be adhering to.

He says he will now be calling on state governors in jurisdictions that have not already done so to legalise the plant and expunge convictions in a similar manner.

Backdoor criminalisation

He has also tasked Merrick Garland, who is federal attorney-general and minister for health and human services, to “expeditiously” review related laws to ensure they are not indirectly leading to the criminalisation of the possession or use of cannabis.

Perhaps the most obvious way this is occurring in Australian jurisdictions is by way of the offence of driving with an illicit substance present in the bloodstream, or ‘drug driving’, whereby a person can be charged and convicted for having minute quantities of THC in their bloodstreams – amounts that are insufficient to impair driving ability.

Separate category for marketing and trafficking

Mr Biden has further called for the plant to be removed from the category of marketing and trafficking laws that criminalise drugs such as heroin, methamphetamines, LSD and cocaine – and put in a separate category which has lower maximum penalties

Drug possession should be treated as a health issue, not a criminal offence

The moves bring the United States closer in line with other nations – such as Portugal, Norway and Denmark – that have gone a step further by legalising or at least decriminalising the possession of formerly illicit drugs for personal use.

Each of these nations has reaped social and economic benefits from their move away from criminalisation – with less drug overdoses, more people coming forward for assistance, lower rates of HIV from the use of shared syringes, less spent on enforcing drug laws and, to the surprise of many, rates of use not increasing.

State versus federal laws 

While there is no one currently serving time in the US for federal mairjuana possession, statistics suggest that there are at least 6,000 Amercians currently facing charges, and thousands more who have already been prosecuted. 

Of course, some US states have already legalised the adult use of marijuana for recreational purposes: including Alaska, Arizona, California, Colorado, New York, Nevada and Oregon amongst others, and it is emerging as a dominant  political issue ahead of the upcoming November elections. Candidates in States where marijuana possession and use is still a criminal offence are making the legalization of marijuana central to their election campaigns in a bid to win majority votes.  

Why the US federal law change is important 

Legal experts, advocates for legalisation and politicians leading the charge for change in the US say that amending the federal laws is important because even though many individual states have moved towards legalising marijuana for recreational and medicinal purposes, some users are still vulnerable to federal prosecution anyway, despite what jurisdiction they are in, because of marijuana’s placement on the Controlled Substances list within 1970 Controlled Substances Act. 

According to some statistics from the US, smoking marijuana is now more popular than smoking tobacco. In a Gallup Poll taken in August this year 16% of respondents admitted to smoking marijuana in the previous week, compared to just 11% who had admitted to smoking tobacco.   

Tobacco usage has been in decline in America for many years, but in the same Gallup Poll this year, nearly a third (30%) of adult respondents under the age of 35 said they smoke marijuana on a regular or semi-regular basis, as did 16 percent of those people surveyed aged  35-54 and 7% of respondents over the age of 55. 

The devastating impact of a criminal conviction 

In a speech announcing his moves towards the legalisation of cannabis, Mr Biden noted the unfairness of being criminally convicted for possessing the plant.

“It’s legal in many states, and criminal records for marijuana possession have led to needless barriers to employment, housing, and educational opportunities. And that’s before you address the racial disparities around who suffers the consequences. While white and Black and brown people use marijuana at similar rates, Black and brown people are arrested, prosecuted, and convicted at disproportionate rates … Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs,” the president stated. 

Time for us to follow suit

Many might consider it a bold move for the US – it’s certainly one that has grabbed international headlines this week, perhaps because it’s not the first time moves have been made at a federal level advocating marijuana law reform, without success. 

It is however, a move that offers renewed hope for drug decriminalisation advocates here in Australia, that our own politicians might follow America’s lead and finally stop debating and actually push forward with law reform, which has been recommended by various experts for many many years.

Regulated Drug Market Could Reduce Deaths from Overdoses and Impurities

By Sonia Hickey and Ugur Nedim

A new report by the National Drug and Alcohol Research Centre (NDARC) has found that ‘cocaine-induced deaths’ have doubled in Australia over the past 5 years, and deaths relating to the use of methamphetamines deaths are also on the rise, four times higher than they were a decade ago.

The report has renewed calls for a regulated market for currently illegal drugs, whereby controls could be placed on purity levels and ensure that potentially-deadly fillers and other chemicals do not find their way to users.

The report

The new report was compiled by NDARC and the University of New South Wales in Sydney, placing the spotlight on the illicit drug market in Australia.

According to the report, the availability and prevalence of cocaine has been steadily rising since 2015.

Sydney has retained its reputation as Australia’s “cocaine capital”, consistently showing the highest use, with increased hospitalisations and treatment episodes also linked to the drug’s use.

The research has also found that Australians have a substantial appetite for illicit substances compared with many other ‘Western nations’ – a demand that shows no signs of abating.

‘Intentional’ deaths increasing

The report further found that of the estimated 1,865 drug-induced deaths among Australians in 2019, one in four were intentional.

Overall, drug-induced deaths among males were almost twice the rate of females in 2019, with the highest rate amongst 45 to 54 year olds, followed by 35-44 year olds.

Data on psychosocial risk factors was also included for the first time, with researchers finding at least one such factor was present for about a quarter of unintentional deaths and 62 percent of intentional deaths in 2019.

Other factors identified were disruption of families by separation and divorce, relationship problems, legal issues and the loss of a person in the primary support group.

This highlights a major problem with Australia’s current punitive approach to drug dependence and drug use because vulnerable people who are dependent on substances are punished, rather than helped, and they remain addicts, stuck in the hopeless cycle of dependency.

Over the past few decades, Australia’s heavy-handed law enforcement approach has resulted in the mass incarceration of people for merely using illicit substances. It has also fostered the rise of criminal networks and, as the figures show, resulted in increased consumption.

The ‘war on drugs’ is failing

This NDARC survey, along with its predecessors and numerous other bodies of research over recent years show that drug use in Australia is a growing national problem. It exists across a number of age groups, cultures, socio-economic bands, and geographic areas, and as it continues to grow it is becoming much more difficult to address successfully with intervention programmes and health care services.

Of course it’s naive to suggest that there shouldn’t also be a focus on law enforcement. Last month, Australian Federal Police intercepted 200 kilograms of cocaine hidden inside a boat sailing off the NSW coast, believed to have originated from Belgium, and arrested a 27 year old man.

At the time, the AFP  said “Australia is a really lucrative market for drugs, so therefore we are targeted by transnational organised crime groups.”

And while there is no disputing the fact that stopping the drugs from hitting Australian streets is a huge win, there is also no question that specialist drug teams are well resourced. What’s clearly lacking is more focus, money and resources for early intervention, education and treatment programmes.

The simple fact of the matter is that while current illicit drug eradication policies remain concentrated on the supply end of the equation, they will never be truly effective without a concentrated effort on dealing with demand.

Drug possession in New South Wales

Drug Possession is an offence under Section 10(1) of the Drug Misuse and Trafficking Act. The maximum penalty is 2 years in prison and/or a fine of $2,200.

Since January 2019, Police have had the powers to issue on-the-spot fines to anyone in possession of small amounts of drugs. Under Schedule 4 of the Criminal Procedure Regulation Act  2017 (NSW), an on-the-spot fine can be issued for less than the following quantities:

  • Amphetamines – 1 gram
  • Cocaine – 1 gram
  • Heroin – 1 gram
  • Ketamine – 2.5 gram
  • Buprenorphine – 4 grams
  • Mescaline – 3 grams
  • Steroids – 50 grams
  • Cannabis oil – 2 grams
  • Cannabis resin – 5 grams

The Schedule does not apply to the possession of cannabis leaf because the ‘cannabis cautioning scheme’ already gives police the power to issue a caution to adults (without issuing a fine) who are found in possession of up to 15 grams of cannabis, provided there has not been a prior caution given to the person found in possession, the person has no prior drug convictions or convictions for sexual and / or violent offences.

The Law and Penalties for Drug Importation in Australia

The self-professed ‘Queen of Richmond’ has been sentenced to 18 years’ imprisonment for her role in running a highly-organised international drug syndicate, which used flight attendants to import heroin into Australia.

Michelle Tran was a nail technician by day, and a drug lord outside of business hours. Now, she will spend a minimum term of 13 years behind bars.

During the sentencing hearing, Judge Michael Cahill remarked that Ms Tran inflicted “great harm to the community” when she caused millions of dollars of high-grade heroin to hit Australia’s streets.

Ms Tran pleaded guilty to one count of importing heroin and one count of trafficking heroin, relating to a three month period between October and December 2018.

Sophisticated operation using airline cabin crew

During that time, Ms Tran organised for $2.4 million of heroin to come into Australia, (worth perhaps four times that much on the streets) from Malaysia through a contact known as ‘Mr Hanoi’.

The syndicate also trafficked seven kilograms of ice and 500 grams of cocaine during that time.

The drugs were smuggled into the country using cabin crew for airline Malindo Air who split one kilo of heroin into three packages they could hide inside their bras and underwear.

The court heard that Ms Tran personally profited $20,000 per kilogram of heroin imported, and that while she made all the arrangements she distanced herself from the actual transactions involving the buying and selling of the drugs.

The court also heard that Ms Tran bragged about her ability to source the ‘purest’ heroin available in Australia and while she took an enormous sense of pride in the operation, she initially took over running the cartel from her estranged husband because she had a gambling addiction and as a result owed ‘substantial’ debts to loan sharks.

Several others also imprisoned

One of the flight attendants who smuggled the heroin one kilo at a time into Australia will spend a minimum of four years and nine months in prison.

The court heard that Zailee Zainal was recruited by the drug syndicate when it learned she was desperate to pay for her daughter’s mounting medical bills.

After drawing down on her mortgage, Zainal had taken to selling brownies and Tupperware to make ends meet. She earned just $6,500 from her role, and will likely be deported after she completes her sentence.

The businessman who picked up the heroin in Australia and exchanged it with buyers before taking the money back to Malaysia will spend a minimum of three years behind bars.

And Ms Tran’s right-hand woman, who Tran called her “soldier”, will spend a minimum of seven years in prison.

The offence of drug importation in Australia

Drug importation is an offence under sections 307.1 (commercial quantity), 307.2 (marketable quantity) and 307.3 (any quantity) of the Criminal Code Act 1995.

To be found guilty of the offence, the prosecution must prove beyond a reasonable doubt that:

  • You imported a border controlled substance, and
  • You knew the substance was a border controlled substance, or were reckless as to whether or not it was a border controlled substance.

The term ‘import’ includes to bring the substance into Australia, as well as to deal with the substance in connection with its importation.

The term ‘reckless’ means you foresaw there was a substantial risk the substance was a border controlled plant but went ahead with your actions regardless.

If the prosecution wishes to charge you with importing a marketable or commercial quantity of drugs, it will need to prove the existence of that quantity.

The relevant quantity for the purpose of drug importation offences is the pure quantity of the drugs.

So, for example, if the charges related to 1 kilogram of cocaine at a purity of 45%, the relevant weight for the purpose of the charge is 450 grams.

This is different to state offences such as drug supply, where the entire weight of the substance – known as the ‘admixture’ – is relevant.

Offence Quantity
Importing a commercial quantity of drugs (Section 307.1) ·       Ecstasy: 500 grams

·       Amphetamines: 750 grams

·       Heroin: 1.5 kilograms

·       Cocaine: 2 kilograms

·       Cannabis: 100 kilograms

Importing a marketable quantity of drugs (Section 307.2) ·       Ecstasy: 0.5 grams

·       Amphetamines, heroin and cocaine: 2 grams

·       Cannabis: 25 kilograms


Importing any quantity of drugs (Section 307.3) The prosecution does not need to prove a particular quantity; it will be enough to import any quantity of drugs.

The maximum penalties that apply to drug importation charges, as well as the penalties actually imposed, are reflected in the following table:

Offence Quantity Maximum Penalty Median penalty
Importing a commercial quantity of drugs (Section 307.1) ·       Ecstasy: 500 grams

·       Amphetamines:750 grams

·       Heroin: 1.5 kilograms

·       Cocaine: 2 kilograms

·       Cannabis: 100 kilograms

Life imprisonment Imprisonment (92%), with full term of 8 years and non-parole period of 6 years.
Importing a marketable quantity of drugs (Section 307.2) ·       Ecstasy: 0.5 grams

·       Amphetamines, heroin and cocaine: 2 grams

·       Cannabis: 25 kilograms


25 years imprisonment Imprisonment (99%), with full term of 6 years and non-parole period of 4 years.
Importing any quantity of drugs (Section 307.3) The prosecution does not need to prove a particular quantity; it will be enough to import any quantity of drugs. 10 years imprisonment Imprisonment (62%), with full term of 18 months and non-parole period of 12 months.

Charged with drug importation?

If you or a loved-one is charged with drug importation, call Sydney Drug Lawyers today on (02) 9261 8883 for advice and representation from a specialist criminal defence team that is vastly experienced in defending serious drug cases.

Have a look through our recent criminal law cases for examples of commercial drug importation cases we have won, as well as the difficult circumstances in which we have achieved bail for clients in high-profile, large commercial drug cases

The Offence of Growing Cannabis in NSW

Four men have been arrested after police raided a 49-hectare property on Bungawalbin-Whipoire road at Gibberagee around 52 kilometres south-east of Lismore and seized 7,200 cannabis plants as well as 50 kilograms of cannabis heads which were allegedly held in 20 large-scale industrial grow-houses.

The men, 37-year old Giant Hong, 35-year old Trong Tung Tan, 34-year old Khac Ngoc Mai and 20-year old Kien Sy Ngo were charged with cultivating a commercial quantity of a prohibited plant and participating in a criminal group, and refused bail in Lismore Local Court.

Detectives from the NSW Drug and Firearms Squad described the operation as “sophisticated”, stating:

“This seizure is the largest industrial grow-house cannabis crop located by NSW police since 2010 – with officers successfully removing 7,200 plants worth nearly $22 million from the property”, said Detective Superintendent John Watson.

“Several thousand of these plants were mature and ready for harvest and were located by detectives inside 20 industrial grow-houses – each equivalent to the size of an Olympic swimming pool.”

“The property itself was used solely for the purpose of cannabis cultivation and was bordered by the Bungawalbin National Park, where the environment can be challenging for police.”

“While there are indications that yesterday’s seizure may be linked to the other sites uncovered in Northern NSW, enquiries into the operations of these suspected criminal syndicates are continuing.”.

“These arrests should send a strong message to criminals using regional NSW to grow cannabis crops that you will not go unnoticed”.

The offence of cultivating prohibited plants

Cultivating prohibited plants is an offence under section 23 of the Drug Misuse and Trafficking Act 1985.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant, and
  2. The plant was a prohibited plant.

If the prosecution is unable to prove these ‘elements’, you are entitled to be found not guilty.

‘Cultivating’ means to sow or scatter the seeds produced by prohibited plants, or to plant, grow, tend to, nurture or harvest the plants.

The most frequently prosecuted cultivation charges relate to cannabis plants.

However, the offence also relates to:

  • Erythroxylon (a source of cocaine),
  • Papaver Somniferum (opium poppy),
  • Papaver orientale (Oriental poppies), and
  • Papaver bracteatum (Iranian or Persian poppies).

It is important to bear in mind that you may have a valid legal defence to the charge, such as duress, which if properly raised must be disproved by the prosecution beyond a reasonable doubt.

If the prosecution is unable to do this, you must be acquitted.

Being lawfully licensed or authorised to cultivate the plant is also a defence, as is acting in accordance with a direction given by the Commissioner of Police,

Cultivating a prohibited plant by enhanced indoor means

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant, and
  3. The cultivation took place by way of enhanced indoor means.

‘Enhanced indoor means’ is where the cultivation:

  1. Occurred within a building or structure, and
  2. Involved any one or more of the following:
  1. The nurture of the plant in nutrient-enriched water (with or without mechanical support),
  2. The application of an artificial source of light or heat, or
  3. Suspending the plant’s roots and spraying them with nutrient solution.

Cultivating a prohibited plant by enhanced indoor means for a commercial purpose

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant,
  3. The cultivation took place by way of enhanced indoor means, and
  4. The cultivation was for a commercial purpose.

‘Commercial purpose’ means:

  1. With the intention of selling it or any of its products, or
  2. With the belief that another intended to sell it or any of its products.

Cultivating a prohibited plant by enhanced indoor means in the presence of children

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant,
  3. The cultivation took place by way of enhanced indoor means, and
  4. The cultivation occurred in the presence of a child or children.

Cultivating a prohibited plant by enhanced indoor means for a commercial purpose in the presence of children

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant,
  3. The cultivation took place by way of enhanced indoor means,
  4. The cultivation was for a commercial purpose, and
  5. The cultivation occurred in the presence of a child or children.

The penalties for cultivating cannabis

The maximum penalties that apply to drug cultivation offences depend on a number of factors, which are:

  • The number of plants (cannabis) or weight of plants (Erythroxylon and poppies),
  • Whether the plants were cultivated outdoors or by ‘enhanced indoor means’,
  • If cultivated by ‘enhanced indoor means’, whether the prosecution is able to prove the plants were cultivated for a ‘commercial purpose’,
  • Whether the plants were cultivated in the presence of a child, and
  • The court in which the case is finalised.

Here are the maximum penalties:

Cultivate Prohibited Plant

Number of Cannabis plants Maximum Penalty
Local Court District Court
Small quantity 1 – 5 2 years imprisonment and/or $5,500 fine.


10 years imprisonment and/or $220,000 fine
Indictable quantity 6 – 249 2 years imprisonment and/or $11,000 fine. 10 years imprisonment and/or $220,000 fine
Commercial quantity 250 – 999 Not applicable 15 years imprisonment and/or $385,000 fine
Large commercial quantity 1000 or more Not applicable 20 years imprisonment and/or $550,000


Cultivate Prohibited Plant by Enhanced Indoor Means

Number of Cannabis plants Maximum Penalty
Local Court District Court
Small quantity  1 – 5 2 years imprisonment and/or $5,500 fine.


10 years imprisonment and/or $220,000 fine
Indictable quantity 6 – 49 2 years imprisonment and/or $11,000 fine. 10 years imprisonment and/or $220,000 fine
Commercial quantity 50 – 199 Not applicable 15 years imprisonment and/or $385,000 fine
Large commercial quantity 200 or more Not applicable 20 years imprisonment and/or $550,000

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose

Number of Cannabis plants Maximum Penalty
Local Court District Court
Small quantity 1 – 5 Not applicable


10 years imprisonment and/or $220,000 fine
Indictable quantity 6 – 49 Not applicable 10 years imprisonment and/or $220,000 fine
Commercial quantity 50 – 199 Not applicable 15 years imprisonment and/or $385,000 fine
Large commercial quantity 200 or more Not applicable 20 years imprisonment and/or $550,000

Cultivate Prohibited Plant by Enhanced Indoor Means in the Presence of Child

Number of Cannabis plants Maximum Penalty
Local Court District Court
Small quantity 1 – 5 2 years imprisonment and/or $5,500 fine.


12 years imprisonment and/or $264,000 fine
Indictable quantity 6 – 49 2 years imprisonment and/or $11,000 fine. 12 years imprisonment and/or $264,000 fine
Commercial quantity 50 – 199 Not applicable 18 years imprisonment and/or $462,000 fine
Large commercial quantity 200 or more Not applicable 24 years imprisonment and/or $660,000

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose in the Presence of Child

Number of Cannabis plants Maximum Penalty
Local Court District Court
Small quantity 1 – 5 Not applicable


18 years imprisonment and/or $462,000 fine
Indictable quantity 6 – 49 Not applicable 18 years imprisonment and/or $462,000 fine
Commercial quantity 50 – 199 Not applicable 18 years imprisonment and/or $462,000 fine
Large commercial quantity  200 or more Not applicable 24 years imprisonment and/or $660,000

However, it is important to bear in mind that these are the maximum penalties, and the court has discretion to apply any of the following penalty-types:

Going to court for cannabis cultivation?

If you or a loved-one has been charged with cannabis cultivation, call Sydney Drug Lawyers anytime on (02) 9261 8883 to arrange a free first consultation or a prison visit with one of our experienced defence lawyers during which we will explain the legal situation, the available options and the best way forward, and fight for the optimal outcome whatever the situation may be.

When Can Officers Perform Body Cavity Searches?

Preparations are being made to pursue a class action lawsuit against the NSW Police Force over their practice of conducting unlawful strip searches.

Whilst ‘regular’ strip searches are certainly embarrassing and demeaning, internal body cavity searches can be downright humiliating and cause a lasting psychological impact – especially on children and those who have previously been sexually assaulted.

Here’s a thumbnail sketch of the rules relating to body cavity searches.

Searches by police officers

Internal searches are classified as an ‘intimate forensic procedure’ and cannot be undertaken by law enforcement as part of a strip search or other bodily search.

Generally, an internal search of a body cavity does not include a person’s mouth, which can be visually observed as part of a personal search.

Police can only search your bodily cavities with your consent or after they have obtained a court order authorising the search.

This applies even if you are under arrest.

Police may be able to intervene if they observe you attempting to swallow or insert drugs into a body cavity that may be harmful to ingest. This is done to prevent self-harm and is not considered ‘a search’.

Generally, you should not feel compelled to consent to an internal search by police unless a warrant has been issued.

Searches by customs officers

Broader powers for internal searches exist for customs officers who wish to detain and search a person who they suspect on reasonable grounds is unlawfully internally carrying prohibited goods such as illicit drugs.

Customs officers can carry out an internal non-medical scan using ‘prescribed equipment’ if a person consents or if a court order is granted allowing the internal ‘scan’.

If consent is not granted or if an internal non-medical scan indicates the presence of an internally secreted prohibited good, senior members of Customs or a member of law enforcement can apply to a judicial officer have a person detained for a further search.

A more in-depth internal medical search can occur if a detained person consents or a court order is granted. An internal medical search can only be undertaken by a medical practitioner.

Searches by corrections officers 

NSW Corrections officers have a number of procedures relating to searching inmates for contraband.

Correctional officers must not internally search an inmate for contraband. However, if an officer suspects that an inmate is attempting to conceal contraband internally the officer may use necessary force to restrain the inmate’s hands to prevent the concealment.

If an inmate is suspected of internally secreting contraband, correctional officers must arrange for the inmate to be clinically assessed to determine possible threats to their health.

An inmate suspected of internally secreting contraband may be held in a ‘dry cell’ (without toilet or running water) pending a clinical assessment.

A medical practitioner may remove internally secreted contraband if it poses an immediate risk to health, with consent or following a court order granting its removal. An X-ray or other medical imaging procedure may be performed to detect the presence of contraband.

The Use of ‘Ice’ and the Criminal Justice System

There is an argument that coverage by the mainstream media of the drug crystal methamphetamine (or ‘ice’) has skewed both public perceptions about the drug itself and its users, as well as the way in which users are dealt with by those involved in the criminal justice system.

This article attempts to separate fact from fiction, and to explain how the use of drugs can impact on the way in which defendants are dealt with by the courts.

The effects of ‘ice’

Ice speeds up messages between the body and brain increasing energy, reducing appetite and increasing heart rate.

At moderate doses, it can make people nervous and agitated but, at high doses, it can cause more worrying effects including psychosis, paranoia and aggression.

A correlation between ice use and offending does exist, but the relationship is more complex than you would think.

The Drug Use Monitoring in Australia (DUMA) program detects the presence of illicit drugs in the urine of people entering custody in Australia. In 2018-19, fifty-two percent of detainees who participated in DUMA tested positive for methamphetamine. This was by far the most prevalent illicit drug detected, higher than cannabis.

Whilst this indicates a relationship between ice use and offending, research attempting to establish a direct link is mixed.

A 2006 paper looking at the relationship between ice use and violence in NSW found insufficient evidence for a direct-link between ice consumption and violence. However, it did note a relationship between methamphetamine-induced psychosis and offending.

More recent research has found that the relationship between ice use and violence is stronger if defendants are frequent users of high purity methamphetamine, as opposed to occasional or recreational users.

Moreover, ice use tends to be more common amongst people who have other risk-factors for offending – such as impulsiveness – meaning ice can exacerbate an existing predisposition to violence, rather than causing violent behaviour directly.

Overall, the relationship between ice use and offending is far from straightforward.

Is Ice Use A Defence?

There is a common misconception in the community that the criminal justice system treats drug users more leniently, or considers drug dependence (addiction) a ‘defence’.

This is not the case.

Part 11A of the Crimes Act 1900 (NSW) outlines the general principles that apply to self-induced intoxication, including whilst ‘high’ on illicit drugs such as ice.

A distinction is made between someone willingly getting high (self-induced intoxication) and people who are drugged without their consent.

Generally, self-induced intoxication is not relevant to determining a guilty mind for most offences (s428D), including murder, manslaughter and assault causing death (s428E).

If an offence requires asking the question of what a reasonable person would do, the court will consider the state of mind of a reasonable sober person, regardless of whether the defendant was high at the time (s428F).

Section 428C states that self-induced intoxication can be considered when an offence requires specific intent (for example, an intent to cause injury) but not if a person had intended to commit the crime before getting high or got high in order to commit the offence.

Overall, being high on ice at the time of offending it is not defence.

When Can Addiction Be Considered?

If someone is dependent (‘addicted’) to ice, this may be raised within the context of a diversion program, Drug Court referral or during the sentencing of an defendant.

Drug addiction is not inherently a mitigating factor in sentencing and courts do not normally take the fact that the defendant was addicted as a good reason to give a lesser sentence.

The reason behind this was outlined by Spigelman CJ in R v Henry (1999) 46 NSWLR 346 whilst sentencing a defendant for a robbery offence:

“The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse”

However, drug addiction may be considered in some circumstances including:

  • Whilst assessing prospects of rehabilitation.
  • As an indicator of relevant mitigating factors such as social disadvantage, poverty or mental health issues.
  • If the defendant became dependant at a very young age, where it couldn’t be considered a personal choice.

Going to court?

If you have been accused of a criminal offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward.

What Are the Rules For Accessing and Selling ‘Poppers’ in Australia?

By Jarryd Bartle and Ugur Nedim

New laws relating to the sale of alkyl nitrite products – also known as ‘poppers’ – come into effect on 1 February 2020.

The changes, made through the Therapeutic Goods Administration (TGA), have created general confusion and led to concerns amongst the homosexual and bisexual community, who feel they are being unfairly targeted.

What Are Alkyl Nitrites?

Alkyl nitrites are the broad chemical name for a range of psychoactive chemicals including amyl nitrite, isoamyl nitrite, isopentyl nitrite and isopropyl nitrite.

The substances have been used to relieve a range of medical conditions, including angina and other heart conditions. But they are also used recreationally as a sexual aid, predominantly by homosexual and bisexual men.

The primary effect of ingesting alkyl nitrites is an increased heart rate and blood flow throughout the body.

Inhalation has a relaxing effect on involuntary smooth muscles, such as those in the throat and anus. As a result, the substances are used as a sexual aid for anal sex by increasing blood flow and relaxing sphincter muscles.

Alkyl nitrite products have been popular within the gay community since the 1970s, when they began to be sold in sex shops and used in gays bars and bathhouses.

Their popularity continues until today – according to a recent survey, 32.1% of Australian gay and bisexual men in Australia have used alkyl nitrites as a recreational drug within the last 6 months.

The Changes

In 2018, the TGA announced it would look at tightening the rules regarding the sale of alkyl nitrites due to their widespread, relatively unregulated sale within sex shops – where they are sometimes labelled as ‘leather cleaners’.

The TGA also expressed concerns about a reports that the alkyl nitrites n-propyl nitrite and isopropyl caused eye damage.

The administration originally proposed rescheduling all alkyl nitrite products to Schedule 9 under the National Poisons Standard.

This caused a strong backlash amongst the LGBTIQ community, who saw it as a backdoor way of criminalising them by placing the substances in the same category of many other illegal drugs.

In a joint submission, the Australian Federation of AIDS Organisations and National LGBTIQ Health Alliance argued that the TGA “significantly overstates the toxicity of the substance and the potential for problematic use” and “ignores the benefits associated with the therapeutic use of alkyl nitrites as a muscle relaxant to make sex less painful for gay and bisexual men and sex workers.”

In response, the TGA revised its approach to reflect community concerns. A final decision was made on 6 June 2019 to:

  • Make all alkyl nitrite products ‘prescription-only’ substances by default (Schedule 4 under the Poisons Standard).
  • Move amyl nitrite in preparations for therapeutic use to a category allowing for over-the-counter pharmacy sales (Schedule 3).
  • Up-schedule n-propyl nitrite and isopropyl nitrite to being prohibited substances due to their implication in eye damage (Schedule 9).

This change was cautiously welcomed by some LGBTIQ groups, as it appeared to allow alkyl nitrite products to be purchased via prescription at pharmacies.

But once the dust settled, it became clear that this could lead to practical barriers to access.

Barriers to Access

Many in the LGBTIQ community believe that having to see a doctor for a prescription and then present that prescription to a pharmacist will cause significant embarrassment to members of an already heavily stigmatised community, and is unnecessary given the relative safety of poppers.

There are concerns that many, too embarrassed to go through the process, will simply not seek to access the substance.

In addition, LGBTIQ activist Joshua Badge found that when he attempted to have a prescription filled last year, there was significant confusion amongst both GPs and pharmacists about the relevant rules.

“Multiple doctor’s visits, dozens of calls, hours of travel time, weeks of waiting… and nothing to show for it. In the end, LGBTIQ people and folks wanting to have enjoyable sex face a gauntlet of stigma, medical jargon, time-consuming hassle and criminalisation.” Badge wrote in Junkee.

The quest to have an amyl nitrite product available over-the-counter at pharmacies also seems unlikely, as there are no current “preparations for human therapeutic use” on the market.

To be readily available on the market a manufacturer would need to register, manufacture and distribute an amyl nitrite to pharmacies, a process which hasn’t occurred.

“It may be two years before we see amyl nitrites in the marketplace” predicted Simon Ruth. CEO of Thorne Habour Health, an organisation that specialises in services for the LGBTIQ community.

Magistrate Dismisses Drug Driving Charge for Medicinal Cannabis User

A driver who was prescribed medicinal cannabis oil for his multiple sclerosis has had his drug-driving charge dismissed by an Adelaide Magistrate.

Brenton Peters is one of over 3000 Australians legally prescribed cannabis oil, but was facing significant penalties for driving with a detectable amount of THC in system.

In a significant decision, Magistrate Susan O’Connor dismissed Peter’s case citing the fact that there was no indication he was impaired or a danger to other drivers.

Here’s what the decision means and why people are still calling for reform of drug-driving laws in South Australia.

Drug Driving Laws

Like in NSW, it is an offence in South Australia to drive or attempt to drive a motor vehicle whilst a prescribed drug is present in your oral fluid or blood.

Mr Peters was pulled over by police and undertook a saliva drug test which came back with a positive result for THC, the psychoactive component in cannabis.

Cannabis is a prescribed drug under the law, regardless of whether it has been prescribed for medical reasons.

Penalties include a criminal record, licence disqualification and fines.

Offences which relate to legal, prescription drugs in South Australia focus on penalising use where someone is “incapable of exercising effective control of the vehicle” rather than having a detectable amount.

Advocates for medicinal cannabis reform have criticised current laws for being unfairly discriminatory, particularly given different rules apply to other prescription drugs

Medicinal cannabis users have been warned against driving for at least 48 hours after consuming a cannabis product to avoid a positive saliva test.

However, in one infamous NSW drug-driving case, THC was detected via a saliva test of a driver who consumed cannabis a week prior.

Clearly, the current laws provide little certainty for medicinal cannabis users.

Dismissing the Charge

South Australian legal commentators say that Magistrate O’Connor found Mr Peters guilty of the offence, but then dismissed the charge without proceeding to a criminal conviction due to the circumstances of the case, as well as the defendant’s other personal factors.

The South Australian law is similar to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 in New South Wales, which allows a magistrate to exercise his or her discretion to dismiss a charge without recording a conviction even if a person is technically guilty.

The factors relevant to a determination under section 10(1)(a) in NSW are:

  • the person’s character, antecedents, age, health and mental condition,
  • the trivial nature of the offence,
  • the extenuating circumstances in which the offence was committed, and
  • any other matter that the court thinks proper to consider.

Magistrate O’Connor warned Mr Peters that he will receive a criminal conviction if he drives with cannabis in his system in the future.

Need for Reform

Given the limitations of current drug-driving laws for medicinal cannabis users, many people are calling for reform.

In 2017, an attempt was made by South Australian Dignity Party MLC Kelly Vincent to reform laws for medicinal cannabis users to allow a defence to existing drug-driving offences.  However, this part of the amendment failed to pass through both houses.

“As with other legal medications, [medicinal cannabis] users should be able to be assessed against their personal capacity to drive” Ms Vincent told Sydney Criminal Lawyers® in 2017.

There has been a steady increase in patients approved for medicinal cannabis in Australia, with the TGA granted 25,182 applications from doctors to prescribe cannabis in 2019. This means a large number of patients are currently at risk under existing drug-driving laws.

Alternative models for drug driving testing are available. For example, Norway has been assessing drug levels in a driver’s system (as opposed to any detectable amount) since 2012. This ‘drug level’ approach was also implemented in the Netherlands in 2017.

This recent case follows a number of positive decisions in regarding to medicinal cannabis charges in South Australia.

Jenny Hallam, who was facing prison time for providing chronically ill patients with the cannabis oil free of charge, was given a two-year good behaviour bond last year by SA District Court Judge Rauf Soulio.

Clearly many people, including members of the judiciary, feel that it is time for cannabis reform.

Berejiklian Bins: A Futile Move By a Failing Premier

NSW deputy state coroner Harriet Grahame recently recommended the implementation of pill testing and the removal of drug dogs at music festivals to prevent people from taking substances that can prove fatal, panic overdosing and preloading on drugs to avoid police detection.

NSW premier Gladys Berejiklian came out on Wednesday with her government’s response to these life-saving recommendations made by an expert charged with ascertaining why six young people died in drug-related circumstances at festivals over the last two summers.

And what did Berejiklian announce? She’s going to implement amnesty bins at festivals, which are designed to be an accompaniment to pill testing operations. They allow people – who’ve had their drugs tested to see if they could prove fatal – to throw them out.

The premier said the provision of bins will allow people that “see police or other activity” to not panic, but throw their drugs away. “Other activity” is presumably code for drug dogs. And as well, Gladys saw fit to declare that she’s “closing the door” on pill testing.

What is she on, anyway?

Respectfully, Ms Berejiklian has never taken any drugs, neither does she have a medical background, and further, she ignores the evidence-based recommendations made by the experts, so she has no idea how ridiculous and harmful what she’s saying in regard to these issues actually is.

Although, the premier could consider a couple of things before she gets more blood on her hands, such as people have pretty much always taken drugs and the fact that some die, hasn’t stopped this. Just in the same way that alcohol deaths haven’t prevented people from enjoying a glass of chardy.

When people go to the trouble of sourcing drugs and paying for them, they don’t expect to die, as the majority of them don’t. When they preload prior to a festival, or panic ingest, they don’t expect to die then either. They’re actually trying to avoid drug dogs and strip searching obsessed police.

If Ms Berejiklian followed the deputy coroner’s recommendations, young people could walk into a festival have their drugs tested, have a discussion with a health expert, avoid taking potentially lethal doses or toxic substances and they could even use her thoughtfully provided bins if they chose to.

And let’s face it, there’s always going to be that person who refuses to use their seatbelt, even though it’s provided, and ends up paying with their life because of it.

A veteran in preventing drug deaths  

The harm reduction programs Dr Alex Wodak has played an integral part in seeing rolled out have saved countless lives in this country. On whether the amnesty bin idea is going to save lives, he said “the answer, unfortunately, is a clear no”.

And as far as the president of the Australian Drug Law Reform Foundation is concerned, the door is definitely still open on “further discussion of pill testing to reduce deaths”. He added that while “saturation policing, strip searches and sniffer dogs might be clever politics”, they don’t work.

“At some time in the future, state and territory governments throughout Australia will accept the overwhelming arguments for providing testing at youth music events and also at fixed sites,” Dr Wodak told Sydney Criminal Lawyers.

“Until policy changes, there will be more needless, preventable deaths.”

Another Young Life Lost at a Music Festival: It’s Time for Pill Testing

By Sonia Hickey and Ugur Nedim

Just last month, New South Wales Police Commissioner Mick Fuller expressed the view that our law enforcement’s current ‘zero tolerance’ approach to drugs is ‘working’, and that pill testing is not an option for our state.

In the same breath, he was adamant police would not be implementing two of the most significant recommendations made by NSW Deputy Coroner Harriet Graeme after her inquiry into drug-related deaths at music festivals.

Ms Graeme’s draft final report is the culmination of months of inquiry into the harrowing drug-related deaths of several teenagers at music festivals. In it, she makes recommendations for a trial of pill testing and the abandonment of sniffer dogs, as well as the reduction of strip searches, and the decriminalisation of drugs taken for personal use at music festivals, amongst 28 other points for consideration.

Another drug-related music festival death

But, as the summer season of music festivals kicked off with Strawberry Fields this weekend, one life has already been lost to a suspected overdose.

A 24-year old man allegedly consumed a cocktail of illicit drugs before he was brought to a medical tent.

Medical staff were told he had consumed multiple substances including GHB, MDMA and cocaine.

Soon after, he suffered a fatal heart attack and, despite the efforts of the medical staff, he was pronounced dead in the early hours of Sunday morning.

An avoidable death?

Of course, it is too early to tell whether his death could have been avoided. An autopsy and toxicology reports will help to piece together what occurred in the lead up to the tragedy.

There will be questions about the purity of the drugs in his body, the amount of drugs he had consumed, the circumstances which led him to ingest the drugs, and whether the medical staff were adequately equipped to deal with his situation.

This information will be crucial to understanding the final hours of this young man’s life.

Young people will take drugs, despite the law

But what remains abundantly clear, and consistent in this tragedy and the others that have gone before it, is that young people are still taking drugs at music festivals, despite what the law says and the use of law enforcement tools such as drug detection dogs.

During the same weekend, 13 people were allegedly found in possession of drugs at another gig in New South Wales, Festival X, at Sydney Olympic Park.

Was the coronial inquest in vain?

And, as countless of experts have already pointed out, it’s remiss of us to ignore the fact young people will continue to take drugs because, in doing so, we continue to do nothing to minimise the chance of death.

As a result of last year’s coronial inquest, which looked into deaths at festivals, the behaviour of young people when sniffer dogs are present, as well as the potential impact of pill testing, we have a great deal of information about why young people have died and how this might be prevented.

As the Coroner’s Court heard, research suggests that 10 per cent of people who encounter sniffer dog operations engage in the dangerous practice of swallowing all of their drugs at once, which can lead to overdose.

What’s more, the Court heard the dogs produce false positives – where they make a positive indication but no drugs are found – two-thirds of the time at festivals, and yet they are being used to justify bodily searches, including invasive and humiliating strip searches.

LECC hearings into strip searches

This week, the Law Enforcement Conduct Commission (LECC) is set to begin public hearings into the strip-searches carried out at the Lost City music festival, an under-18s event held in Sydney in February.

The hearings are part of an ongoing investigation by the LECC, which has already heard a number of distressing stories from the Splendour in the Grass Music Festival.

If there is one positive to come out of the weekend’s music festivities, it is that it would appear that the New South Wales police may have conceded on one of the recommendations from Assistant Coroner Harriet Graeme’s report – decriminalising illicit drugs for personal use.

Police can fine alleged offenders for drug possession

The 13 people found with prohibited drugs at Festival X were dealt with by way of Criminal Infringement Notices (CINs) and fined $400.

CINs are also known as ‘on-the-spot fines’ and mean that police can fine a person rather than sending them to court. CINs do not come with a criminal record, but a person may face the prospect of a criminal record if they elect to challenge the fine by taking the case to court.

Over the coming months, music festivals will face much higher scrutiny than ever before, particularly in light of findings of last year’s coronial inquest.

The NSW government remains under increasing pressure to change its current tactics for policing drugs at music festivals, particularly its stance on pill-testing as a harm minimisation measure, which it has steadfastly refused to consider. 

Only time will tell whether or not the Coronial Inquest’s recommendations will be followed.