Category Archives:Drug Cultivation

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.

Legalising Cannabis Does Not Lead to a Rise in Crime

By Zeb Holmes and Ugur Nedim

An extensive study conducted in the United States suggests that legalising cannabis has not led to a rise in either property crime or violent crime.

The research adds further credibility to calls for cannabis legalisation in Australia, helping debunk the conservative myth that cannabis use leads to criminality.

Imprisoning the indigent

The US currently imprisons nearly 2.3 million people, which is the largest prison population on earth.

A significant portion are behind bars for low level offending, including repeated low level drug offences such as drug possession.

The nation disproportionately imprisons the poorest and most vulnerable, including African and Latino Americans, and mandatory sentencing policies such as ‘three strikes’ laws ensure low level felonies lead to lengthy prison sentences, even life imprisonment.

The study

The recent study, published in the Journal of Economic Behaviour and Organization, used crime rate data from 1988 to 2013 from states which initially decriminalised medicinal cannabis, many of whom proceeded to legalise the use and possession of the drug.

Researchers compared that data with year-by-year averages from states which did not legalise the plant, finding no discernible difference.

The Californian experience

California was the first jurisdiction in the United States to legalise medicinal cannabis in 1996, with 30 states and the District of Columbia later following in its footsteps.

Over the period of the study, violent and property crime rates have dropped by 20%.

It is important to note that, as is the case in NSW, these types of crimes have been falling throughout the US for over 30 years – and it is certainly not suggested that legalisation is a primary reason behind the reduction.

However, it should also be noted that crime rates in California have fallen at a faster rate than states that did not legalise the medicinal or recreation use of the plant, and that research has found that legalisation has now all-but destroyed the black market for the drug in the state, crushing a number of Mexican drug cartels and even leading some go out of business – with their violent crimes going with them.

The law on drug possession in New South Wales

Drug possession remains a crime in our state.

The maximum penalty for possession a prohibited drug, such as cannabis, is two years in prison and/or a fine of $2,200.

For a person to be found guilty, the prosecution needs to prove beyond reasonable doubt that he or she:

  • Had physical possession or control of a prohibited drug,
  • Knew or reasonably believed it was there, and
  • Knew or reasonably believed the substance was a prohibited drug.

If a person pleads guilty or is found guilty of cannabis possession, the magistrate can exercise his or her discretion not to impose a criminal conviction (criminal record) but, instead, dismiss the charge under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or place the person on a Conditional Release Order without conviction for up to two years.

Cannabis cautioning scheme

Since the year 2000, NSW has had a cannabis cautioning scheme which allows police officers to exercise their discretion in certain situations not to send people to court for possessing cannabis.

Police can only issue a cannabis caution to adults who have not previously been convicted of a drug offence, a sexual offence or an offence of violence.

A caution is only available for possessing under 15 grams of cannabis, and only two cautions can be administered upon any person.

Medicinal cannabis in New South Wales

Although laws have been passed in our state to legalise medicinal cannabis, it has proven to be far more difficult to access than in places like California, not to mention much more expensive.

In NSW, both the cannabis prescriber and product itself are required to go through the arduous process of registration and licensing.

It is legal for those suffering certain medical conditions to access medicinal cannabis under clinical trials or the Special Access and Authorised Prescriber Schemes administered by the Therapeutic Goods Administration (TPA).

As of October 2018, the TPA has approved the following medical conditions:

  • chemotherapy-induced nausea and vomiting
  • refractory pediatric epilepsy
  • palliative care indications
  • cancer pain
  • neuropathic pain
  • spasticity from neurological conditions
  • anorexia and wasting associated with chronic illness (such as cancer).

Just legalise it

Neither of the major political parties, whether on a state or federal level, support the broader legalisation of cannabis.

The Greens is the only party with seats in federal parliament to have announced a policy to legalise the use and possession of the plant across Australia.

The plan is to make cannabis available through an “Australian Cannabis Agency”, which would have the sole responsibility for distributing the product.

The new Agency would issue licendes for production and sale, as well as monitor retailers.

It would also be responsible for collecting a tobacco-style tax from consumers, which would then be used for education and treatment programs.

Federal Health Minister Greg Hunt has criticised the, asserting the (widely disproven) claim that cannabis is a “gateway drug” to other “harder drugs”.

“We do not believe it is safe, responsible or something which should be allowed”, Mr Hunt stated.

Meanwhile, Opposition Leader Bill Shorten has accused the Greens of generating “political clickbait”, making clear he does not support broader legalisation.

Medicinal Cannabis: Legal But Inaccessible

By Sonia Hickey and Ugur Nedim

The Turnbull government passed the Narcotic Drugs Amendment Bill in February 2016. The ensuing legislation set up a licensing scheme to allow for “the cultivation and production of cannabis and cannabis resin for medicinal and scientific purposes.”

A handful of licences were issued within the first few months, and many more were in various stages of determination. Recognising it would be some time before locally produced cannabis-based products would be available, the Health Minister Greg Hunt set up an importation scheme.

But two years after the legislation was enacted, medicinal cannabis is still notoriously difficult to access.

Benefits of medicinal cannabis

The potential value of medicinal cannabis in treating a wide range of conditions has been confirmed by scientific research in a number of countries.

The medicine has been found to ease the discomfort associated with chemotherapy, to treat the symptoms of Alzheimer’s disease and multiple sclerosis and to reduce seizures in cases of severe epilepsy. Cannabis medicines have also been widely recognised for their ability to provide relief for those living with chronic pain.

The problem is that doctors can’t prescribe the medicine unless they have been specifically authorised to do so. And even if they could, it is unlikely the local chemist would stock what you need. And on top of that, the limited availability makes the cost of the medicine beyond the reach of ordinary people.

In fact, the very same federal and state laws that made medicinal cannabis legal have such restrictive rules and regulations, that accessing the medicine is impossible for many.

Bureaucracy limits access

Medicinal cannabis campaigners such as Lucy Haslam are baffled – they say there are hurdles at every step of the process, from cultivating the plant and manufacturing the medicine, through to prescribing and dispensing it to patients.

Only one medicinal cannabis product has been approved by the Therapeutic Goods Administration (TGA) – the government department that allows medications to be legally distributed in Australia.

To legally obtain any other cannabis-based product, patients must apply to the government on an individual basis. If the product contains THC – the element that gives cannabis its dissociative effect – approval is required from both the state and federal governments.

Applications must be completed by a specialist medical practitioner, not a local GP, and the specialist must establish a case for why medicinal cannabis should be used instead of another drug that already exists on the TGA register.

Doctors and even politicians assert that the process is so complex and inconsistent that it is unworkable.

Of the 64 applications for access to medicinal cannabis made to NSW Health between August 2016 and October 2017, more than 40 were sent back for further information. Eighteen were rejected entirely.

Only a handful of people have so far been granted access to medicinal cannabis – roughly 150 people across the entire country.

As mentioned, another barrier is the high cost of treatment – making medicinal cannabis products unaffordable for many ordinary Australians, and is not covered by Medicare.

It is hoped that when Australia begins to actually establish its own local production, supply will increase and the medicine will be more affordable.

The black market is thriving

It has been reported that as a result, the unauthorised supply of cannabis medicines is thriving.

There are producers who are simply trying to do the right thing – to provide a medicine to chronically ill people which they cannot otherwise access.

They have seen the benefits of the drug first hand. But despite their goodwill, these suppliers are being raided, arrested, charged and sent to court to face the prospect of a criminal record or even imprisonment.

Meanwhile, the bureaucracy continues to fail those in need.

Police Raid Another Medical Marijuana Producer

Police have raided another medicinal cannabis producer, who gives away her products free to help patients suffering from chronic pain and seizures. On January 4, South Australia police raided the home of Jenny Hallam and seized products and equipment related to the production of cannabis oil.

Ms Hallam is said to have been producing the medicine for two years and been supplying about 200 patients nationwide.

The 44-year-old’s criminal defence lawyer said her client would be appearing in court at a later date.

The lawyer questioned whether Ms Hallam committed a crime, as her client produces the product for people who need it, she doesn’t grow the cannabis she uses to make the oil, and nor does she sell her product.

A spokeswoman for SA police confirmed the home of a 44-year-old woman in the northern Adelaide suburb of Hillier had been raided and said police had seized “a quantity of chemicals and other substances from the address which will be forensically analysed.”

Concerned parents

Since the raid, parents of dozens of sick children have spoken out about the effect it’s going to have on their kids.

Steve Peek from Brisbane has an eight-year-old daughter Suli who relies on medicinal cannabis to control her seizures. He told the ABC that he’d contacted the SA police who told him they had “done the wrong thing but they had no choice because a complaint had been made.”

The police suggested Mr Peek contact the South Australian ombudsman about the matter.

An unlikely advocate

Since the raid, One Nation leader Pauline Hanson has stepped up as an unexpected advocate for medical marijuana. She announced on Sunday that she’d been in contact with prime minister Malcolm Turnbull calling for an amnesty for producers and users of medicinal cannabis.

Ms Hanson declared on her Facebook page that she has been a long-time advocate of the medicine, “due to its effective relief for so many ailments, conventional drugs can’t offer.”

Ms Hanson is not the only conservative politician to have thrown their weight behind legalised medicinal cannabis. A turning point for many was when then-prime minister Tony Abbott supplied a letter supporting medical marijuana for radio presenter Alan Jones to read on air in September 2014.

Legalising medical marijuana

In February last year, federal parliament passed the Narcotic Drugs Amendment Bill 2016 allowing for the legal cultivation, manufacture and distribution of medical marijuana.

Under the new system – which came into effect on October 30 last year – businesses can apply for a licence to grow the plant for medicinal purposes. However, many in the community are asking what current medicinal cannabis patients are meant to do while they wait for the legalised products to be rolled out.

The raid on a Newcastle medicinal cannabis dispensary

Last week’s raid follows a similar incident in December when NSW police raided a medical marijuana dispensary in Newcastle. Two hundred and fifteen plants were seized from a hydroponic operation run by a local group called the Church of Ubuntu.

Co-founder of the church Karen Burge told Sydney Criminal Lawyers® at the time that they’d been supplying small plants for cancer patients and parents of children with epilepsy to grow at home.

The church was one of the largest suppliers in the country with 2,000 patients.
Ms Burge added that the authorities were well aware of their two year long operation as they’d contacted premier Mike Baird about it in early 2015.

The Hemp party weighs in

Secretary of the Australian Hemp party Andrew Kavasilas said that the raid on Jenny Hallam’s house was terrible. But he expects the police will continue carrying out operations like these.

“It seems this is a sign of the time. This is obviously going to happen more and more over the next ten to twenty years,” Kavasilas told Sydney Criminal Lawyers®. “Because that’s how long medical cannabis will take to get up and going.”

Kavasilas said a situation will arise where more and more courts and police are going to be wasting their time in pursuing medicinal cannabis producers. “You’ll find that courts find no criminal activity, no criminal intent. So by and large, the criminal justice system doesn’t apply to them and they’ll be treated with leniency,” he outlined.

According to Kavasilas there are around 1,000 medical marijuana supply outlets around the country, and more than 100,000 patients using the medicine at the moment. He added that the laws that have been changed and the amendment of the Narcotics Act has done “nothing to address” these patients concerns.

Advocates call for immediate access

Medicinal cannabis advocates in Queensland are calling on the government to legalise the medicine immediately. In October last year, legislation was passed before state parliament that will allow Queensland doctors to prescribe medical marijuana to patients as of March.

But advocates are saying the wait could actually cost lives.

While in NSW, the state government is conducting several medicinal cannabis trials on chemotherapy patients and children with epilepsy. But again, advocates point out that these programs are slowing down access to the products for patients who need them now.

Dr Alex Wodak, president of the Australian Drug Law Reform Foundation, has questioned why certain trials need to be carried out when a 2012 study identified 82 favourable controlled trials had been held around the world, and only nine unfavourable ones.

However, the doctor has also pointed out that there is a need for continued trials into areas that haven’t been thoroughly researched as yet.

The federal government’s medical marijuana adviser

Questions have also been raised over the appointment of doctor Andrew Southcott to the chair of the new Australian Advisory Council on the Medicinal Use of Cannabis. The former Liberal MP has previously said the drug is “not safe.”

In 2011, when Southcott was the opposition’s spokesperson on primary healthcare, he criticised the “normalisation” of the plant, in response to a Food Standards Australia New Zealand review of the use of hemp as food.

Interim measures

The answer to the current medicinal marijuana access problem is interim measures, according to Kavasilas. He believes the government should sit down with advocates like the HEMP party and discuss what measures could be taken now.

Then the government could take these guidelines to the United Nations and explain that this “is what Australia intends to do in the interim while companies materialise and produce these medical cannabis products,” Kavasilas said

“Bearing in mind that years or decades of medical research in the future may just show that conventional raw cannabis products are far superior to pharmaceutical ones,” he concluded.

Queensland Legalises Medical Cannabis

Queensland doctors will be able to prescribe medicinal cannabis to patients from March next year, under new legislation that passed by the state parliament on Wednesday night.

The Public Health (Medicinal Cannabis) Bill 2016 – which passed unanimously – establishes laws described as the most flexible in the country.

Accessing medicinal cannabis

Under the new laws, patients can access cannabis in two ways.

Specialist doctors, such as oncologists and paediatric neurologists can prescribe medical marijuana to patients directly, without the need for additional approval from Queensland Health.

Other doctors, including GPs, will be able to prescribe the medicine with certain conditions after applying to the health department for permission.

“Ground breaking” laws

Queensland health minister Cameron Dick said the bill will change “the paradigm for seriously ill patients” who are currently forced to obtain cannabis products illegally.

The minster said the legislation provides access to “both synthetic and botanically derived” medicinal cannabis.

Mr Dick said patients can access the drugs prior to the enactment of the new laws in March, under changes made to the Health (Drugs and Poisons) Regulation last year.

Currently, one patient in Queensland is legally using medicinal cannabis – a teenager from the Brisbane suburb of Loganholme was given approval earlier this year to treat a brain tumour.

No local supply

However, no medicinal cannabis products are currently produced legally in Queensland, and civil libertarians are calling for a local industry to be established.

Michael Cope, spokesperson for the Queensland Council for Civil Liberties, told the ABC that medical marijuana products are only manufactured in a few overseas countries. He said the products are extremely difficult to obtain and very expensive.

Criticism of the legislation

But some medicinal cannabis advocates are critical of the reforms.

Deb Lynch, secretary of the Medical Cannabis Users Association of Australia (M.C.U.A), told Sydney Criminal Lawyers® that while the legislation is a good first step, “it doesn’t go far enough.”

According to Ms Lynch, the application process for doctors who want to prescribe the medicine is so rigorous that few will be approved.

Doctors who apply will have to prove they have a thorough knowledge of medical marijuana treatments. Doctors will also need to be available for follow up visits three months after the initial consultation to provide a report on the patient and the medicine.

This situation will lead to private patients being able to find a doctor who can supply the medication, while public patients will have a lot of difficulty obtaining the drugs.

“They’re just going to drive patients underground again, to either home grow and risk prosecution themselves or to the black market,” Ms Lynch said, adding there needs to be an amnesty for current patients.

The application process also places full responsibility onto doctors for any side effects resulting from cannabis medications.

While Ms Lynch thinks this is a good idea, she questions why the government is specifically isolating cannabis for such stringent regulations and not all pharmaceutical drugs.

Current producers of medical marijuana

And as for those who are illegally producing medicinal marijuana products for patients currently using it, the new legislation could mean an end to business, or worse.

“They could end up in gaol for decades, myself included, because I actually make ointments I send to other scleroderma patients,” said Ms Lynch, who suffers from scleroderma herself. “So I risk going to gaol for 15 to 20 years for helping others.”

Queensland’s medicinal cannabis trials

As of July this year, parents of children with severe drug-resistant epilepsy in Queensland have been able to register for medicinal cannabis trials that are set to begin before the end of the year.

A research team from Lady Cilento Children’s Hospital in Brisbane will lead the trials, which will involve the use of Epidiolex – a liquid form of pure cannabidiol (CBD) – produced by UK-based pharmaceutical company GW Pharmaceuticals.

Ms Lynch questions why the trials are limited to just one form of medicinal cannabis, as “CBD medicines overseas haven’t been as successful as the ones we are getting here now illegally.”

CBD is one of 113 active cannabinoids contained in the cannabis plant, all of which act on receptors in the brain.

Children suffering severe seizures need access to other cannabinoids, such as THCA, CBN and THC, Ms Lynch believes. “They’re seizing and they’re just not stopping,” she said. “It’s the THC that’s actually bringing them out of it.”

Medical marijuana developments around Australia

Marijuana reform is not just isolated to Queensland – it’s been a big year for the plant across Australia.

In February this year, federal parliament passed the Narcotic Drugs Amendment Bill 2016 allowing for the legal cultivation, manufacture and distribution of medical marijuana.

A national regulatory body will be established to oversee the market that will provide medicinal cannabis to patients with a valid prescription.

Both the NSW and Victorian state governments have already begun cultivating cannabis crops.

Victoria was the first state to legalise medicinal cannabis in April.

The Victorian Access to Medicinal Cannabis Act 2016 allows for the manufacture, supply and access to medical marijuana, but it will be restricted to children suffering severe epilepsy for the time being.

The Tasmanian state government announced in April that specialist doctors would be able to prescribe medicinal cannabis to patients with chronic illnesses starting next year.

However on Tuesday, Tasmanian parliament voted down a Greens’ motion to establish a register of medicinal cannabis users who would be quarantined from persecution prior to the establishment of the state’s Controlled Access Scheme.

In NSW, doctors have been able to prescribe medicinal cannabis to patients with a range conditions since August 1.

Under amendments to the Poisons and Therapeutic Goods regulations, patients who have exhausted other standard treatment options for illnesses – such as arthritis, epilepsy and schizophrenia – can access the medicine if they receive approval from a NSW Health panel of experts.

And on August 31, the Therapeutic Goods Administration published their formal decision that legalises the medicinal use of the plant as of November this year.

Cannabis House Goes Up in Smoke

The only thing fire fighters were able to salvage from a house fire that destroyed a home in suburban Moorebank, was a small bag of clothing.

But while fighting the flames, emergency services couldn’t help but notice a sophisticated hydroponic set-up, and the 34-year-old man occupier arrived just as police discovered that three rooms were allegedly being used to grow cannabis.

Reports say the man lived in the house with his partner and two young children, and although no one was home during the blaze, a litter of three puppies tragically lost their lives.

Charges laid

The man was later arrested and charged with cultivating a prohibited plant by enhanced indoor means. He was granted conditional bail and will appear in Liverpool Local Court next month. He may face additional charges of exposing a child to the cultivation of a prohibited plant.

Much of the ‘fruit’ of the man’s alleged efforts has been destroyed by the fire, but if it is alleged that there was more than a small quantity of cannabis plants (5 plants) but not more than a commercial quantity (250 plants), he could face imprisonment of up to 10 years as well as a hefty fine.

If it is alleged to be more than a commercial quantity but less that the large commercial quantity (1000 plants), he faces up to 15 years in prison. And if it is more than a large commercial quantity, the maximum prison term is 20 years.

Although the cause of the fire is yet to be determined, police suspect it was started by an electrical fault caused by the hydroponic set up.

Neighbours’ photos of the blaze show thick plumes of smoke, with one neighbour trying to extinguish the flames using a garden hose.

It is the second Sydney house allegedly containing cannabis crops to go up in flames in as many months.

Police recently raided a property in Peakhurst, in Sydney’s south, seizing approximately 70 cannabis plants with an estimated value of $200,000. A 25-year old man was arrested and charged with cannabis cultivation over that incident.

Several days after charges were laid, the house was severely damaged in a fire which police are treating as ‘suspicious’. Investigators say there was evidence of a flammable liquid being used in a several rooms. Police are determining whether arson charges should be pressed over the fire.

Government’s New Weapon for Locating Drug Labs

The Australian Government has released its annual Illicit Drug Data Report (IDDR) which shows an alarming spike in the number of drug hauls and arrests, as well as drug use in a number of categories.

Drug seizures are up more than 13% and drug arrests are up almost 20% on figures from last year.

But while cannabis remained the most frequently confiscated drug in Australia, the number of heroin-related arrests fell to their lowest level in a decade.

Numbers from around the nation

The report shows that the highest number of arrests were for cannabis at 56.1%. In second place were amphetamine-type stimulates (ATS) particularly ‘ice’, at 26.5%.

South Australia had the highest proportion of arrests related to cannabis at 85.4%.

In Victoria, the proportion of ATS arrests was higher than any other state at more than 37%, and Victoria also recorded the highest proportion of heroin and other opioids at 4.8 %.

New South Wales recorded the highest percentage of cocaine arrests at 3.8%, while in Western Australia, 23.7% of drug arrests were related to “other and unknown” drugs.

Overall drug arrests have increased significantly over the past decade.

Justice Minister Michael Keenan said the numbers equated to 290 seizures and 367 arrests per day.

The report is released by the Australian Criminal Intelligence Commission (ACIC). It is compiled from law enforcement data, and is said provide a “clear snapshot of illegal drug use and supply in Australia” in order to help guide resources and funding aimed at combating the issue.

Waste water testing – the government’s new weapon

This year for the first time, the report incorporated data extracted from waste water analysis, (sewerage testing) which showed that ice use in the community has increased significantly since 2010.

Minister Keenan claims waste water testing will help police to locate illegal clandestine laboratories, and “will help us identify which drugs are being supplied and which drugs are increasing or decreasing in usage.”

Mr Keenan pointed out that the ice taskforce recommends greater use of waste water testing. In the past, drug users themselves were the main source of information about the prevalence and location of drug labs. But wastewater testing suggests that such data is wildly inaccurate, with usage dramatically under-reported, which is no surprise given that drug possession is still a crime in Australia.

Indeed, the waste water data supports what drug reform experts have suspected – that methamphetamine use is on the rise.

Professor Jason White of the University of South Australia, a state where a lot of the waste water testing has been conducted, estimates there has been a greater than three-fold increase in the use of methamphetamines over the past five years.

The government recently announced that it will invest an extra $3.6 million towards waste water testing, hoping to localise testing to such an extent that the location of labs will be easier to determine.

Australia an ‘attractive market’ for drug suppliers

ACIC says that because Australia is isolated, it is an attractive market for drug enterprises.

It believes organised crime and transnational crime groups continue to be the main players in the market.

Decriminalisation not on the agenda

Mr Keenan said that despite the prevalence of drug use in Australia, and the success of decriminalisation in some other countries, moving away from a punitive approach towards drug use is not on the agenda here. He added that neither are tougher penalties for drug offences.

Keenan said he believes there is a need to continue to educate Australians on the detrimental effect drug use on their physical and mental wellbeing.

In line with that strategy, Federal Government made its most significant investment ever in drug and alcohol rehabilitation in Australia’s history last year.

Keenan said he is hopeful that over time, “that multi-faceted approach will pay dividends.”

Help Police, Dad’s Burning My Marijuana!

Every now and then, police come across something so strange they’re left scratching their heads.

One such incident occurred recently in the Northern Territory, when Humpty Doo police received a call from a young man enraged that his father had burned his cannabis plants.

Apparently, the son had been fighting with his father since he moved to Humpty Doo (about 40km south of Darwin) from interstate a short time ago.

According to police, the son was “indignant and enraged” and felt it was “wrong” of his father to have burnt the plants. Officers arrived at the scene and questioned the son about whether he knew possessing of cannabis is illegal, and he could be sent to court.

However, the son felt his father’s destruction of the plants was a far worse crime.

As all of the plants had been destroyed by the fire, police decided not to lay any charges over the incident. Nevertheless, the officers took to social media, publishing a full account of the story.

Northern Territory

In the Northern Territory, the possession of small amounts of cannabis is decriminalised – which means police can issue a fine rather than sending a person to court to be dealt with under the criminal law.

In 1996, the NT decriminalised the possession of up to 50 grams of marijuana, one gram of hashish oil, 10 grams of cannabis seed, and two non-hydroponic plants.

New South Wales

Cannabis has not been decriminalised in NSW, but a cannabis cautioning scheme has been in place since the year 2000, which allows police to issue a caution for possession of less than 15 grams of cannabis rather than sending a person to court.

This scheme was implemented in response to recommendations by the NSW Drug Summit in 2000.

A review of the scheme in 2011 found it been effective in reducing reoffending by diverting people away from the criminal justice system.

Cultivation – Growing Cannabis in NSW

Under section 23 of the Drug Misuse and Trafficking Act, it is illegal to grow cannabis plants in NSW.

Cultivating outdoors is sowing or scattering the seeds, planting, growing, tending, nurturing and harvesting the plant. Cultivating by indoor means it occurs within a building or structure. This may involve the nurture of the plant in nutrient-enriched water (with or without mechanical support), or the application of an artificial source of light or heat, or suspending the plant’s roots and spraying them with nutrient solution.
You don’t need to be the sole cultivator to be guilty of the offence.

Penalties for Cannabis Cultivation

The penalties depend on the amount – the greater the amount, the more serious the penalty could be.

Here is a table containing the applicable maximum penalties:

If you are charged with cannabis cultivation, it is a good idea to seek advice from a specialist criminal lawyer who is experienced in dealing with drug charges.

Growing Pot Is No Way to Get Rich

Brendon Scorey has learned the hard way that there is truth to the old adage: crime does not pay.

The Cairns District Court has heard how 22-year-old Mr Scorey had no criminal record, but was broke and looking for work when he discovered a group of people planning to grow cannabis for profit. Mr Scorey was told he would earn between $10,000 and $100,000 for his role in the venture.

Instead, all he got from a year’s involvement was $5,000, a criminal record, and a suspended prison sentence.

Dollar signs in his eyes, Mr Scorey ignored the early signs that his investment was not working. Scorey and another man worked hard clearing land, setting up an irrigation system and creating garden beds. After a year trying to grow cannabis, most of the crop had been destroyed by wild pigs, rats, and the weather. Scorey was left for long stretches of time to mind the crop on his own.

For all his efforts, Scorey said he only cultivated about 2.7kg of cannabis and ended up with about $5,000.

Despite his earnings being well below the minimum wage, Mr Scorey foolishly tried his luck again, devising a new plan to grow more cannabis.

The court was told how police became involved when a man who was minding the new crop took his own life.

Mr Scorey’s criminal defence lawyer told the court that his client was young, down on his luck, and had turned his life around since the hapless venture.

He was given a three year suspended prison sentence; any breach of which will likely see him behind bars.

The Real Costs of Growing Cannabis

In Colorado, where it is legal to sell and use cannabis for recreational purposes, there are some very sophisticated harvesters who are able to sell approximately 600 pounds a year.

One grower based in Colorado says that since legalisation, ounces are selling for around 125 to 150 US Dollars. Selling 600 pounds a year would bring in $1,440,000, which seems impressive, until you factor in that he spends a third of his profits growing and prepping the cannabis for sale and has 15 employees to pay.

Down the other end of the production chain, people aren’t seeing this kind of money.

Obviously in Australia, despite the difficulties, some people have been able to make substantial profits growing and selling cannabis illegally. The increased profits are balanced with the increased risks of being ripped-off or dobbed-in by the people you’re working with, violence, receiving a criminal record, and being sent to prison.

But now that Australia is looking to make medical cannabis available to those with a prescription, we are likely to see the farming of crops become more mainstream and competitive here as well.

The Wall Street Journal describes the situation in Denver, where medicinal cannabis is grown and sold legally:

“Trying to make a profit in this business is harder than expected. When grown and sold legally, marijuana can be an expensive proposition, with high startup costs, a host of operational headaches and state regulations that a beet farmer could never imagine.”

Confluence Denver reports that the extremely high energy costs of growing cannabis are a killer for both profits and the environment:

“Now that it’s legal and grow houses have, well, grown to meet demand, it’s also had an impact on the electric grid. ‘There have been situations where we’ve had to upgrade transformers,’ says Xcel Energy spokesperson Gabriel Romero. The utility has also had to upgrade the power lines going into the grow houses when they weren’t equipped for the higher voltage.

“Those changes are paid for by the warehouse owner,” says Romero. “Those things are pretty expensive startup fees.” It can cost hundreds of thousands of dollars to upgrade the electric equipment in some situations.”

When the Wall Street Journal asked veteran cannabis farmer, Elliott Klug, about the secret to making a profit in the cultivation of cannabis, he said: “Start with lots of money.”

Perhaps the old joke about vineyards is equally applicable to cannabis farms:

“Know how to make a million dollars in a vineyard? Start with 5 million”.

The Holiday Home from Hell

It was supposed to be a relaxing summer holiday on the Gold Coast – but family man Dieter Winkler, his wife and their five children were shocked to discover that the Burleigh Heads cottage they had rented was a drug den.

The family were preparing to enjoy a barbecue when 10 armed police officers smashed down the door and raided the property. After being interrogated for five hours and having their possessions ‘ramsacked,’ the Winklers were stunned to discover the secret behind a locked room – which a female owner had told them was ‘off-limits’ due to an electrical fault.

The room, which was located next to the bedroom shared by his five children – housed eight cannabis plants in an extensive hydroponic set up. Authorities described the room as a ‘fire waiting to happen’ due to dodgy electrical wiring which fed lights 24 hours a day.

According to Mr Winkler, police claimed to be unaware that the property was being rented out to holidaymakers; which raises questions about the quality of intelligence checking, investigation and surveillance techniques.

Mr Winkler said his family were treated like criminals, with his children – the youngest aged 9 – and 72-year-old mother, witnessing the terrifying raid.

Police have used the incident to highlight the risks of renting properties from unknown owners, with a police spokesperson stating that ‘people need to understand that you don’t know who the homeowner is, or if you’re renting a room who you could be staying with.’

The holiday rental company AirBnB agreed to reimburse the Winklers the $1800 paid for rental– as well as $2,600 spent to secure alternative last minute accommodation elsewhere.

But the experience ruined the family’s first get together in two years, with Mr Winkler describing it as ‘the worst holiday’ and vowing to never use Airbnb again.

Homeowners Fall Victim to Drug Cultivating Tenants

On the flip side, a Victorian man found his investment property trashed and abandoned by drug cultivators late last year.

29-year-old Trent Lister purchased the Geelong property with his mother and partner, but upon returning to conduct a routine inspection in August, discovered that the previous tenants had rewired electrical circuits, removed cupboards and fixtures, and cut holes in walls, floors and the roof. Doors had been ripped out to make way for plants, and water had been redirected around the house.

The occupants had then absconded, leaving Mr Lister to pay thousands of dollars for the damage cause. He says that his family may face bankruptcy due to the high cost of repairs.

Mr Lister says that he conducted all necessary background checks prior to renting the property – he had met with the tenants, obtained copies of their driver licences and details of their previous rental history. But the licences and rental history turned out to be false.

While taking taken DNA samples from the house, police advised Mr Lister that they are unlikely to catch the culprits.

Knowing the Law

Residents and homeowners who use property to produce, supply or cultivate commercial quantities of illicit drugs can face heavy penalties under the law.

Properties used to manufacture or cultivate drugs fall within the definition of ‘drug premises’ under the Drug Misuse and Trafficking Act 1985.

Apart from the presence of drugs, a court can look at the following factors when deciding whether a particular property is a ‘drug premises’:

  • The fact that a police officer who was authorised to enter the premises was prevented or obstructed from doing so;
  • Evidence of doors being fitted with bolts, bars, chains or other devices to obstruct entry;
  • Evidence of a person acting as a lookout to warn persons of police officers or other persons;
  • Evidence of syringes or other devices used for the supply, manufacture or use of a prohibited drug;
  • Evidence of unlawful firearms or prohibited weapons;
  • Evidence of large amounts of money that cannot be accounted for by the owner or occupier;
  • Evidence of persons on the premises being affected by drugs;
  • Evidence of drug cultivation equipment such as high powered lights, fluorescent lights, light units and growing chambers;
  • Fans and vents installed in unusual spots;
  • Evidence of high electricity consumption;
  • Evidence that electricity is being sourced from an illegal source;\Evidence of prohibited plants or seeds being found on the premises.

Property owners who knowingly allow another to use their property as ‘drug premises’ face a maximum penalty of 12 months imprisonment and/or a fine of $5,500 under section 36Y of the Act. For a second or subsequent offence, the penalty increases to 5 years imprisonment and/or a fine of $55,000.

Organising, conducting or assisting with the organisation of drug premises is an offence which carries the same penalties. A person can be found guilty of this offence there is sufficient evidence to show that they acted as a lookout, guard, or door attendant at the premises.

Even simply entering or being on premises which you know are being used as drug premises can result in these heavy penalties, unless you are able to establish that you were on, or entering or leaving the premises, for a lawful purpose or with a lawful excuse.