Archive for the ‘News – Going to Court’ Category

Marijuana and the Law

You may well have heard someone say “Marijuana is legal now – it is legal in Canberra, it has been decriminalised in New South Wales. You just aren’t allowed to sell it.” Is this true?

Well, in simplistic terms – no! Marijuana (or ‘cannabis’ as it known in law enforcement circles) is illegal everywhere in Australia. The penalties that one can incur for having, selling or growing marijuana varies a lot from state to state.

We have set out below the state by state position so that the bigger picture of laws relating to cannabis in Australia can be shown.

 

New South Wales

  • Any cannabis offence is a criminal offence and therefore can carry a criminal record.
  • Cautions may be given at police discretion to persons found with up to 15 grams of cannabis, on up to two occasions.
  • Cautions are accompanied by information regarding cannabis usage and a number for an advice line.

Victoria

  • Cannabis offences are criminal offences, but are tried in a specialised drug court rather than a regular criminal court.
  • It is at the discretion of the arresting officer whether to charge a person found with less than 50 grams cannabis or refer them to a ‘diversion’ program for help and education, this discretion by the police is only given on two occasions.

Queensland

  • Possession and use of cannabis is a criminal offence in Queensland.
  • A person found to have less than 50 grams of cannabis must be offered a drug diversion program on their first offence.

Western Australia

  • Cannabis offences are criminal offences in Western Australia and Western Australia has some of the toughest laws in Australia regarding cannabis use.
  • A person found to have less than 10 grams of cannabis or a used smoking instrument (such as a pipe or water pipe) must attend a Cannabis Intervention session within 28 days or they will receive a criminal conviction.

Tasmania

  • Possession of cannabis carries a criminal charge in Tasmania.
  • A person found with up to 50 grams of cannabis can be cautioned, at the police officer’s discretion, up to three times in ten years.
  • The nature of each caution differs, growing in severity from the person being given information in the first instance to the possibility of being sent for treatment for drug use in the third instance.

South Australia

  • Minor cannabis offences have been decriminalised in South Australia. This does not mean it is ‘legal’.
  • Persons who are found to have up to 100 grams of cannabis, 20 grams of hash resin, one non-hydroponic plant (which means it is grown in soil) or smoking equipment are issued with a fine of up to $150 and given 60 days to pay the fine.

Northern Territory

  • Cannabis has been decriminalised in the Northern Territory, however it is still illegal.
  • Persons found in possession of up to 50 grams of cannabis or 1 gram of hash or cannabis seeds or two non-hydroponic plants can face fines of up to $200 and 28 days to pay the fine to avoid a charge.

Australian Capital Territory

  • Cannabis has been decriminalised in the Australian Capital Territory but is still not legal.
  • Persons found with less than 25 grams of cannabis or up to two non-hydroponic cannabis plants are offered the choice to pay a fine or attend a treatment program.

 

Cannabis or Marijuana is not legal in any state or territory of Australia.

Contrary to what seems to be a reasonably popular belief, there is no part of Australia where marijuana and its products are legal to grow, possess or sell. When examined on a state-by-state basis, it is clear that while in some states and territories the personal use of marijuana has been decriminalised, users and possessors still face repercussions if they decide to use or possess any cannabis or cannabis related products.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

The importance of character references in a Court case

If you know someone who is being sentenced in Court and they ask you for a character reference do you know what to do?

The purpose of a character reference for a person who has pleaded guilty to a criminal or traffic matter is to being to the Courts attention details of good character about the accused. Lawyers will acknowledge that in many cases the character reference will not make any difference to the penalty imposed, however all lawyers would agree that a poorly framed character reference will not help at all.

Address the reference to the Court

References that are not addressed to the Court are basically unusable. An unaddressed reference is likely to be met with a comment from the Judge or Magistrate that it could be a job application or some club membership with the implication being that it will be ignored.

So it is best to see the Court papers so you can address it to the relevant Court. You do not need to address it to a particular Judge or Magistrate, “The Presiding Magistrate (insert district) Court” will do.

This immediately indicates it is for the person who is before the Court. For the same reason it needs to have a date and preferably be kept clean, businesslike and typewritten. Overall the reference should not exceed one page. Often the best ones are succinct.

Specify the time you have known the person

It should include details stating how long the person writing the reference has known the person they are writing about and set out the details about how that happened, for example through work or a sporting team.

The person writing the reference should say in their own words and (hopefully) make relevant and positive comments about the character of the subject.

Acknowledge the offence

You need to put yourself in the shoes of the judicial officer. A reference will carry more weight if the person writing the reference has been told by the accused about the offence (not just some of the offences but the lot). If the writer can make the point that the accused person has discussed it with him/her the writer can then say, if applicable, that it is out of character. It is advisable that a person writing a character reference include note this in the opening of the reference so the judicial office is made aware early on and can read with that in mind as in addition, that notwithstanding the offence, the writer is still prepared to write such a reference.

Discuss the offence with the person

For the same reason it can be helpful for the person writing the reference to actually discuss the offence with the person they are writing about. They might then be able to say that they are aware that the person is sorry or remorseful for what they have done or cite examples of why it is out of character.

Family or Community involvement

If you know the accused through a family or community association then you can cite examples of you observations about family commitments or involvement with community activities that the offender may have undertaken that you know about.

Summary

Sometimes references won’t help at all but in other circumstances they can have a positive effect in the sentencing process. Nevertheless it is better to be in a position to provide them than not. You don’t want to provide too many but if you ask say three people you may want to use the best two.

If you are ever in need of one or of having to write one it is useful to have these tips in mind.

If you need more information or if you need assistance or advice on how to proceed please call us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.