Offences Involving Cannabis


In the ACT, it is an offence to possess, cultivate, sell, traffic or administer cannabis. This section covers each of these offences and their maximum penalties, which range from fines of $100 to life imprisonment, depending on the offence.

Cannabis is known by many street names such as marijuana, weed, dope, pot, Mary Jane, doobie, bud, ganja, grass, herb, blunt and joint.

Simple Cannabis Offences

Usually if you are found to have committed an offence, the police will issue a Court Attendance Notice requiring you to attend court on a criminal charge. However, if you have committed a simple cannabis offence the police may exercise their discretion to issue a Simple Cannabis Offence Notice instead, commonly referred to as a ‘SCON’. There are three simple cannabis offences:-

  • Cultivating one or two cannabis plants, excluding plants that are cultivated artificially;
  • Possessing not more than 50g of cannabis; and
  • Administering cannabis to yourself.

If you have committed one of the following offences, see our section on Simple Cannabis Offences.

Administering Cannabis

In the ACT, it is an offence to administer cannabis to another person, yourself or an animal without being authorised to do so. Administering cannabis to yourself is a ‘simple cannabis offence’ and may be dealt with by way of a Simple Cannabis Offence Notice – see our section on Simple Cannabis Offences. However, if you have administered cannabis to another person or an animal, the maximum penalty is a fine of 100 penalty units and/or 1 year imprisonment.

The Offence Of Administering Cannabis

The offence of administering cannabis is contained in section 37 of the Medicines, Poisons and Therapeutic Goods Act 2008. It prohibits the administration of a declared substance to:

  • Another person; or
  • Yourself; or
  • An animal.

unless you are authorised to do so.

Conviction for this offence can result in a fine of up to 100 penalty units, 1 year imprisonment or both.

Cannabis is classified by the Therapeutic Goods Administration (TGA) as a ‘prohibited substance’, being a declared substance under Schedule 9 of the Federal Poisons Standard. Substances classified as ‘prohibited substances’ are considered declared substances as they are subject to abuse.

What The Prosecution Must Prove

The prosecution must prove each of the following matters beyond a reasonable doubt:

  • That the substance in question is cannabis; and
  • That you administered the cannabis to either:
    • Another person; or
    • Yourself; or
    • An animal; and
  • That you were not authorised to do so.

Which Court Will Hear Your Matter?

This matter is a summary matter and will be dealt with in the ACT Magistrates Court.

Possessing Cannabis

It is an offence to be in possession of any quantity of cannabis in the ACT. The maximum penalty is a fine of 50 penalty units and/or 2 years imprisonment.

The Offence Of Possessing Cannabis

The offence of possessing cannabis is contained in section 171 of the Drugs of Dependence Act 1989 which states that a person shall not possess a prohibited substance. Cannabis is defined as a prohibited substance under section 5 of the Drugs of Dependence Regulation 2009.

If the quantity of cannabis does not exceed 50 g in mass then the maximum penalty is a fine of 1 penalty unit. This is classified as a ‘simple cannabis offence’ and may be dealt with by a Simple Cannabis Offence Notice – see our section on Simple Cannabis Offences).

However, if the quantity of cannabis exceeds 50 g in mass then the maximum penalty is a fine of 50 penalty units, imprisonment for 2 years or both.

What Is ‘Possession’?

The prosecution must prove the following beyond reasonable doubt:-

  • The substance was in your custody or control; and
  • You knew that you had custody or control of the substance; and
  • That substance was cannabis.

All of these things need to be proved beyond reasonable doubt in order for you to be found guilty of possessing cannabis.

In order to have custody you must have immediate physical possession of the cannabis. For example, you have cannabis in your pocket.

In order to have control you must have a right to do something with the cannabis. For example, you are at a party and you take the cannabis out of your pocket, place it on the table and walk out onto the balcony to join your friends. At this point you have lost custody of the cannabis, however you still have control as you have the right to keep, consume or share the cannabis.

In each of these circumstances you must also have knowledge that you had custody or control of the cannabis. For example, if a friend placed the cannabis in your bag without you realising, you may have custody of it but you do not have the requisite knowledge to be guilty of the offence.

What Actions Might Constitute Possession?

Because of the broad interpretation of ‘possession’, you can possess something even if you only hold it momentarily. For example, if you are sitting with some friends passing a joint around and the police arrive, you are in possession of the cannabis even if it has only just been passed to you.

Examples of what would NOT constitute possession:

  • You own an apartment that is rented out. The tenants have been found to have cannabis at the apartment but you were unaware until you were contacted by police. This is not possession because although you own the apartment, you do not own all of the things in it and do not have any right to use and/or sell the contents.
  • You live in a share house with 3 other housemates. Police find cannabis in the living room which is a shared space that all 4 of you use regularly. Unless someone makes a statement to police admitting that the drugs are theirs, or implicating someone else, it is likely that no one will be charged because police cannot determine which one of you had custody or control of the cannabis.
  • You host a party at your house and you know some guests had left cannabis on your outdoor table. You called them the next day and asked them to collect it but before they get to your house, the police arrive. You tell police that you were waiting for someone to collect it. In this case you have knowledge that the cannabis is there, however you have not laid claim to it and have not done anything to exercise control over it.

What The Police Must Prove

To convict you of possessing cannabis, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you had possession of the substance; and
  • That substance was cannabis.

Which Court Will Hear Your Matter?

This is a summary matter and will be dealt with in the ACT Magistrates Court.

Selling Cannabis Plants

It is an offence in the ACT to sell cannabis plants. The maximum penalty ranges from fines of 300 penalty units to imprisonment for life, depending on the number of cannabis plants.

The Offence Of Selling Cannabis Plants

The sale of cannabis plants is divided into a number of offences based on the number of cannabis plants sold. These offences are contained in section 619 of the Criminal Code 2002 which states that a person commits an offence if they:-

  • Sell a cannabis plant (contrary to section 619(8) of the Criminal Code 2002).
  • Sell a trafficable quantity of cannabis plants (contrary to section 619(5) of the Criminal Code2002).
  • Sell a commercial quantity of cannabis plants (contrary to section 619(3) of the Criminal Code2002).
  • Sell a large commercial quantity of cannabis plants (contrary to section 619(1) of the Criminal Code2002).

The penalties for this offence range from a fine of 300 penalty units to life imprisonment, depending on the quantity of cannabis sold. The specific penalties are set out below.

Quantity of Cannabis Maximum Penalty
Single plant 300 penalty units and/or 3 years imprisonment
Trafficable quantity (10 plants or more) 1,000 penalty units and/or 10 years imprisonment
Commercial quantity (100 plants or more) 2,500 penalty units and/or 25 years imprisonment
Large commercial quantity (1,000 plants or more) Life imprisonment

These quantities are set out in Schedule 2 of the Criminal Code Regulation 2005.

These offences relate specifically to plants and/or seedlings that are growing. If you have sold fresh and/or dried parts of cannabis plants, see our section on Trafficking in Cannabis.

What Is Selling?

To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of selling. The term ‘sell’ is defined in section 600 of the Criminal Code 2002 which states that:

‘Sell’ includes:-

  • Barter or exchange; and
  • Give to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise; and
  • Agree to sell.

If you have done any of the above in relation to providing cannabis plants to someone else, you may be charged with selling cannabis plants.

What Actions Might Constitute Selling Cannabis Plants?

Examples of selling cannabis include:-

  • You give your cousin a cannabis plant in exchange for his DVD collection of Entourage.
  • Your brother catches you hosting a wild house party at your parents’ coast house. You ask him not to tell your parents and give him your 2 cannabis plants in return for his silence.
  • You agree to sell your friend a number of cannabis plants. You have not given him the plants yet because he does not have the money on him but his neighbour overhears your conversation and calls police.

What The Police Must Prove

To convict you of selling a cannabis plant, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you sold a plant; and
  • That plant was a cannabis plant; and
  • That the quantity sold is equal to, or greater than, the quantity you are charged with selling.

Which Court Will Hear Your Matter?

These matters may be dealt with in either the ACT Magistrates Court or the ACT Supreme Court, depending on the number of cannabis plants you are charged with selling.

Trafficking In Cannabis

It is an offence in the ACT to traffic cannabis. The maximum penalty ranges from fines of 300 penalty units to imprisonment for life, depending on the quantity of cannabis.

The Offence Of Trafficking In Cannabis

Trafficking of cannabis is divided into a number of offences based on the quantity of cannabis trafficked. These offences are contained in section 603 of the Criminal Code 2002 which states that a person commits an offence if they:

  • Traffic in cannabis (contrary to section 603(8) of the Criminal Code2002).
  • Traffic in a trafficable quantity of cannabis (contrary to section 603(5) of the Criminal Code2002).
  • Traffic in a commercial quantity of cannabis (contrary to section 603(3) of the Criminal Code2002).
  • Traffic in a large commercial quantity of cannabis (contrary to section 603(1) of the Criminal Code 2002).

The penalties for this offence range from a fine of 300 penalty units to life imprisonment, depending on the quantity of cannabis sold. The specific penalties are set out below.

Life imprisonment

Quantity of Cannabis Maximum Penalty
Less than a trafficable quantity (less than 300 g) 300 penalty units and/or 3 years imprisonment
Trafficable quantity (300 g or more) 1,000 penalty units and/or 10 years imprisonment
Commercial quantity (30 kg or more) 2,500 penalty units and/or 25 years imprisonment
Large commercial quantity (150 kg or more)

These quantities are set out in Schedule 1 of the Criminal Code Regulation 2005.

These offences relate specifically to fresh and/or dried parts of cannabis plants. If you have sold growing plants and/or seedlings, see our section on Selling Cannabis Plants.

What Is Trafficking?

To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of trafficking. The term ‘traffic’ is defined in section 602 of the Criminal Code 2002 which states that:

A person traffics in a controlled drug if the person:-

  • Sells the drug; or
  • Prepares the drug for supply either with the intention of selling any of it or believing that someone else intends to sell any of it; or
  • Transports the drug either with the intention of selling any of it or believing that someone else intends to sell any of it; or
  • Guards or conceals the drug either with the intention of selling any of it or helping someone else to sell any of it; or
  • Possesses the drug with the intention of selling any of it.

If you have done any of the above, you may be charged with trafficking cannabis. You do not have to prepare, transport, conceal, possess and sell cannabis in order to be found guilty of this offence.

What Actions Might Constitute Trafficking In Cannabis?

Examples of trafficking cannabis include:-

  • You weigh and divide up cannabis into bags with the knowledge that your brother is going to sell it.
  • You know your friend sells cannabis and you are at his house when he receives a request from a buyer. He asks you to conceal the cannabis in the back seat of the car and come with him to meet up with the buyer.
  • You have a supply of bud at your apartment where you live by yourself. You are going to keep most of it but have agreed to sell some to a friend of a friend.

What The Police Must Prove

To convict you of trafficking cannabis, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you trafficked in a substance; and
  • That substance was cannabis; and
  • That the quantity of cannabis trafficked is equal to, or greater than, the quantity you have been charged with trafficking.

Which court will hear your matter?

These matters may be dealt with in either the ACT Magistrates Court or the ACT Supreme Court, depending on the quantity of cannabis you are charged with trafficking.

Cultivating Cannabis

Contrary to popular belief it is an offence to cultivate any number of cannabis plants in the ACT. Cultivation of one or two cannabis plants (excluding plants cultivated artificially) may be dealt with by way of a Simple Cannabis Offence Notice – see our section on Simple Cannabis Offences. However, cultivation of:

  • 1 or 2 cannabis plants cultivated artificially; or
  • 3 or more cannabis plants cultivated artificially or otherwise

may be punishable by a fine of up to 200 penalty units and/or 2 years imprisonment.

A plant is considered to be cultivated artificially if it is hydroponically cultivated or cultivated with the application of an artificial source of light or heat.

The Offence Of Cultivating Cannabis

The offence of cultivating cannabis is contained in section 618 of the Criminal Code 2002 which states that a person commits an offence if they:-

  • Artificially cultivate one or two plants; or
  • Cultivate three or more plants (whether artificially or otherwise).

The maximum penalty for this offence is a fine of 200 penalty units, 2 years imprisonment or both.

What Is Cultivation?

To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of cultivation. The terms ‘cultivates’ and ‘cultivation’ are defined in section 615 of the Criminal Code 2002 which states that:

A person ‘cultivates’ a plant if the person:-

  • Engages in its cultivation; or
  • Exercises control or direction over its cultivation; or
  • Provides or arranges finances for its cultivation.

‘Cultivation’ of a plant includes:-

  • Planting a seed, seedling or cutting of the plant or transporting the plant; or
  • Nurturing, tending or growing the plant; or
  • Guarding or concealing the plant (including against interference or discovery by humans or natural predators); or
  • Harvesting the plant (including picking any part of the plant or separating any resin or other substance from the plant).

If you have been involved in any of the above you may be charged with cultivating cannabis. It is not necessary for you to have been involved in the cultivation from start to finish, or to have been solely responsible for the cultivation in order to be found guilty.

What Actions Might Constitute Cultivating Cannabis?

Examples of cultivating cannabis include:

  • Scattering cannabis seeds in a secluded area of your parents’ 1000 acre property;
  • Watering your partner’s cannabis plants;
  • Planting a cannabis plant you got off your friend in one of your favourite pots and ensuring it gets enough water and sunlight;
  • Concealing cannabis plants to avoid other people discovering them; or
  • Harvesting the buds from a cannabis plant for your brother to consume.

What The Police Must Prove

To convict you of cultivating a cannabis plant, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you cultivated a plant; and
  • That plant was a cannabis plant.

However, if you:-

  • Intended to sell the plant or any of its products; or
  • Believed that someone else intended to sell it or any of its products; or
  • You cultivated a trafficable quantity (300g or more) of cannabis

then you will likely be charged with Cultivating Cannabis for Selling.

Possible Defences For Cultivating Cannabis

The common ways to defend this charge are:-

  • To maintain your innocence if you did not commit the act; or
  • To argue that you were not cultivating the plant; or
  • To argue that the plant was not cannabis.

Which court will hear your matter?

This is a summary matter and will be dealt with in the ACT Magistrates Court.

Cultivating Cannabis For Selling

In the ACT it is an offence to cultivate cannabis for the purpose of selling it or any of its products. This includes cultivating cannabis with the belief that someone else intends to sell it or any of its products. You can be convicted of this offence even if you have only cultivated a single cannabis plant. The penalties for this offence range from a fine of 300 penalty units and/or 3 years imprisonment for cultivating a single cannabis plant, to life imprisonment for cultivating a large commercial quantity of cannabis plants

The Offence Of Cultivating Cannabis For Selling

The offence of cultivating cannabis for selling is contained in section 616 of the Criminal Code 2002 which states that a person commits an offence if they cultivate a cannabis plant:-

  • With the intention of selling the plant or any of its products; or
  • Believing that someone else intends to sell the plant or any of its products.

The penalty for this offence depends on the quantity of cannabis cultivated and is detailed below.

Quantity of Cannabis Maximum Penalty
Single plant 300 penalty units and/or 3 years imprisonment
Trafficable quantity (10 plants or more) 1,000 penalty units and/or 10 years imprisonment
Commercial quantity (100 plants or more) 2,500 penalty units and/or 25 years imprisonment
Large commercial quantity (1,000 plants or more) Life imprisonment

These quantities are set out in Schedule 2 of the Criminal Code Regulation 2005.

What Is Cultivation?

To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of cultivation. The terms ‘cultivates’ and ‘cultivation’ are defined in section 615 of the Criminal Code 2002 which states that:

A person ‘cultivates’ a plant if the person:-

  • Engages in its cultivation; or
  • Exercises control or direction over its cultivation; or
  • Provides or arranges finances for its cultivation.

‘Cultivation’ of a plant includes:-

  • Planting a seed, seedling or cutting of the plant or transporting the plant; or
  • Nurturing, tending or growing the plant; or
  • Guarding or concealing the plant (including against interference or discovery by humans or natural predators); or
  • Harvesting the plant (including picking any part of the plant or separating any resin or other substance from the plant).

If you have been involved in any of the above and you either:-

  • Intended to sell the plant or any of its products; or
  • Believed someone else intended to sell the plant or any of its products

then you may be charged with cultivating a cannabis plant for selling. It is not necessary for you to have been involved in the cultivation from start to finish or to have been solely responsible for the cultivation in order to be charged with cultivation.

Because the offence includes cultivation for the purpose of selling products of the plant, it is also necessary to understand what this encompasses. The term ‘product’ is also defined in section 615 of the Criminal Code 2002, which states that:

‘Product’ of a plant includes:-

  • A seed of the plant; and
  • A part of the plant (whether live or dead); and
  • A substance separated from the plant.

What Actions Might Constitute Cultivating Cannabis?

Examples of cultivating cannabis include:

  • Scattering cannabis seeds in a secluded area of your parents’ 1000 acre property;
  • Watering your partner’s cannabis plants;
  • Planting a cannabis plant you got off your friend in one of your favourite pots and ensuring it gets enough water and sunlight;
  • Concealing cannabis plants to avoid other people discovering them; or
  • Harvesting the buds from a cannabis plant for your brother to consume.

Doing any of the above with the intention of selling the plant/its products, or believing that someone else intends to sell the plant/its products, will constitute cultivating a cannabis plant for selling. Cultivation does not require you to have been involved from start to finish or to have been solely responsible for the cultivation.

What The Police Must Prove

To convict you of cultivating a cannabis plant for selling, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you cultivated a plant; and
  • That plant was a cannabis plant; and
  • That you either:
    • Intended to sell the plant; or
    • Intended to sell any of the plant’s products; or
    • Believed someone else intended to sell the plant; or
    • Believed someone else intended to sell any of the plant’s products.

Although the prosecution has to prove beyond reasonable doubt that you intended (or believed someone else intended) to sell the cannabis plant/its products, it should be noted that there is a legal presumption that this was in fact the case if you cultivated a trafficable quantity (300 g or more) of cannabis. This presumption is contained in section 617 of the Criminal Code 2002. What this means is that if you cultivated a trafficable quantity (300 g or more) of cannabis, the onus is on you to rebut the presumption and show that it was not your intention to sell or have someone else sell the cannabis plant/its products. This presumption exists because it is presumed that a trafficable quantity is too much to be merely for personal use, and therefore must be intended for sale.

Which Court Will Hear Your Matter?

This is an indictable matter but may be heard in either the ACT Supreme Court or the ACT Magistrates Court, depending on the quantity of the cannabis cultivated.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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