Cannabis Offences and Penalties in Western Australia (WA)

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The illegal use of Cannabis is a criminal offence that incurs penalties. There are also mandatory sentencing punishments for certain cultivating crimes, especially in aggravating circumstances.

Cannabis and other drug offences are regulated under the Misuse of Drugs Act 1981 (WA). The Act describes Cannabis as marijuana, ganja, dope, pot, grass, hashish and other names relating to the area. For any form of Cannabis; Leaf, Cigarettes, Resins or other conditions, it is illegal to deal with Cannabis in any form.

Dealing with Cannabis offences has improved under the new laws (2011 Amendments) with the new Cannabis Intervention Requirement (CIR) for those who possess minor quantities.

If an individual is convicted in a Western Australian court for a cannabis offence, the offence will show up as a disclosable court outcome (DCO) on a Western Australian Nationally Coordinated Criminal History Check certificate.

What is a Cannabis Intervention Requirement ?

A CIR is a notice reflecting the regulations; it contains an excellent description of the alleged offence and offences.

Also, the CIR must contain;

• Option for the accused person to be prosecuted,
• Provide sufficient information on how they will go about it.
• That if they elect against a court hearing, they must complete a Cannabis Intervention Session (CIS) within 28 days.
• Inform the accused on how they must complete the CIS per WA regulations.

Cannabis Intervention Requirements (CIR)

Cannabis Intervention Requirement (CIR) programs are issued under section 8E of the Misuse of Drugs Act 1981 (WA) and are common where the Police officer or any other person in charge believes the offence to be minor and less deserving of a court summons. A CIR may also be issued even where the Police officer believes the accused;

• Committed more than one minor cannabis-related offences
• The alleged offences came about from the same incident

The offender should get the CIR as soon as practicable, usually within 60 days of the offence.

A CIR cannot be issued to adult offenders who received a minor cannabis-related offence or already got a CIR.

For a Young Person

There are special recommendations for when the offender is/was a young person. Section 8G of the Act lists some special conditions in issuing a CIR to offenders. The CIR cannot be issued to a person that is;

• The young person who has a previous conviction or CIR in 2 or more cannabis-related offences
• Where two of those offences resulted from separate incidents or are alleged to have been.

Issuing of a CIR

Subsection 2 gives direction for an officer issuing a CIR to a young person to do so;

• In the presence of an adult, and issue the adult a copy of such report where applicable, unless
• An adult cannot be found under reasonable enquiry,
• The circumstances will prevent an adult from getting a copy of the CIR.

A young person who receives 2 or more CIR will only need to complete a single CIS regarding the CIR. However, the CIRs must be given before completing the running CIS.

Does a CIR qualify as a criminal record?

The CIR/CIS participation does not appear in a Nationally Coordinated Criminal History Check, nor does it qualify as a future legal reference.

Penalties for drug offences

Only simple cannabis or drug offences are handled using the Cannabis Intervention Scheme. Cannabis offences, especially those dealing with commercial quantities, are punished by penalties stipulated under the Misuse of Drugs Act 1981 (WA).

1. Permitting prohibited dealings with drugs in your premises

It includes where a person who has legal authority over premises as a manager, caretaker, occupier, and so on, allows the premised to be used in;

• Manufacture and preparation of prohibited drugs
• Sale, manufacture and supply of prohibited materials
• Knowingly allows the property as an aid/accessory to a drug offence

Such a person who is guilty of a simple offence under section 5 of the Misuse of Drugs Act 1981 (WA) is guilty of a simple drug offence .

2. Dealing with Prohibited Drugs

Dealing with a prohibited drug is a serious offense . Guilty persons will be prosecuted depending on the number of drugs they handled within the period. A person has committed such offence if they;

• Possess such drug with intent to supply to another person
• Manufacture or prepare a prohibited drug
• Sells or supplies or offers to sell prohibited drugs

Unless they are authorised by the Medicines and Poisons Act 2014 (WA), the person may be guilty of a simple offence under the law.

Offences of dealing with prohibited plants

It is an offence under section 7 of the Act for a person to;

• Cultivate a prohibited plant with the intent to supply or sell them,
• Offer to sell a prohibited plant to another person

A person commits a simple offence if they cultivate simple plants under WA laws.

The offence of selling/supplying a material/equipment used in hydroponic cultivation of a prohibited plant

Section 7A of the Act describes an offence where a person sells, supplies material, or offers to do so while they know it will be used to cultivate a prohibited plant.

This section describes an indictable offence carrying higher penalties than other cannabis offences . The Director of Public Prosecutions (DPP) may also implore the Court to impose a prohibited period for the individual.

Drug paraphernalia and offences

Section 7B of the Misuse of Drugs Act 1981 (WA) describes drug paraphernalia as anything that aids the ingestion, intake or administration of Cannabis or other substances. A person who displays such for sale in retail commits a simple offence.

• It is an offence that incurs a fine of $10,000
• If a person sells the drug paraphernalia to a child, the penalty increases to $24,000 in fines.

However, it is a defence for this case if the accused person;

• Was prescribed by a legal/medical entity to retail such
• The drug paraphernalia was a material specified for the use of such
• The sale and display happened in a prescribed circumstance.

Subsection 6 condemns a person holding drug paraphernalia with a prohibited plant/substance in it. It is a simple offence that incurs;

• $36,000 in acceptable amounts
• Three years imprisonment, or
• Both.

A person guilty of these offences (s6 & s7) of the Act commits a crime that incurs penalties of;

• $20,000 or imprisonment term not exceeding ten years or both, primarily if the District or Supreme Court handles them.
• $5,000 in fines or imprisonment for a period not exceeding four years, especially when the matter is dealt with summarily in a lower court

Where an offender must be sentenced under the law

There are certain offences and acts where the Court must impose a minimum sentencing (imprisonment) for the offender. Section 34 of the Act describes these Acts as aggravating circumstances for drug offences.

• Supply to a child

Where an adult knowingly or recklessly supplies a prohibited drug to a child, they are guilty of a severe offence that follows the following sentencing.

• First offences
• A sentence of imprisonment, or
• Suspended imprisonment under the law, or
• Conditional suspended imprisonment

• Subsequent offences

Imprisonment term for at least six months that cannot be suspended.

Cultivating that puts a child at risk

It is an offence to engage in the cultivation of Cannabis in a manner that puts a child at risk. The risk could be in the form of the child's health, life, or safety, and where the child is under 16 at the time. It is an offence that incurs;

First offence

• Imprisonment term (sentencing)
• An option of suspended sentencing
• Conditional suspended imprisonment term

Subsequent offences

The Act stipulates a repeat offender to receive a minimum sentencing of 6 months for this offence. And the sentencing cannot be suspended under the normal laws.

Harmful cultivation

Where cultivation causes bodily harm to a child either through the intentional or reckless act of the accused, it is an imprisonment of at least 12 months. It includes where the child is under 16 at the time of the offence.

Drug Driving offence

The Road Traffic Act 1974 (WA) prohibits specific actions when driving a vehicle on WA roads. One of the most grievous traffic offences is Driving under the Influence (DUI) or Drug driving offences.

Also, It is a severe offence for a person to possess above the regulated quantity of Cannabis or other drugs in their vehicle.

Punishments for drug driving offences include;

• Car impoundment,
• License Disqualification,
• Fines (Demerit point loss).

Alternative verdicts in Court

Even when the Court does not find a person guilty of an offence, it can sentence them for another offence if the evidence proves it.

The Court can commit a charge to a simple offence if the evidence proves the person was not guilty of the indictable crime . The Supreme or District court can, in that regard, impose the prescribed penalties for simple offences

Police powers in dealing with Cannabis offences

Section 8S of the of the Misuse of Drugs Act 1981 (WA) permits some police to enter a premise where they reasonably suspect that;

• People are manufacturing, selling or illegally dealing with controlled substances,
• Provide information on how to use the substance,
• Provides information on where a person may acquire such substances.

Defences to a drug charge

If you receive a court summons for a drug charge, you must employ the services of a lawyer. There are many options/arguments your legal counsel can take;

• Show evidence you did not intend to supply
• The child was above 16 at the time
• The person carried a legal quantity
• The person got a license from the Medicine and Poison agency.

Will a Cannabis Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a cannabis offence , the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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