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Cannabis

Expiation of simple cannabis offences

Section 45A(8) of the Controlled Substances Act 1984 (SA) provides for the expiation (on-the-spot fine) of simple cannabis offences. This section came into effect on 3 December 2007, and only applies to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA)].

In accordance with section 45A, the following offences are simple cannabis offences:

  • An offence against section 33L(2)(b) involving smoking or consuming cannabis, cannabis resin, or cannabis oil but not an offence committed in a public place or prescribed place. This includes motor vehicles, trains, trams and any other vehicle while in a public place [see Controlled Substances Act 1984 ss 45A(8) and 33L(2)(b); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 15(3)].
  • An offence against section 33L(2)(c) involving possession of equipment for smoking or consuming, or for preparation of cannabis, cannabis resin or cannabis oil for smoking or consuming [see Controlled Substances Act 1984 (SA) ss 45A(8) and 33L(2)(c)].

To summarise, a simple cannabis offence includes offences involving allegations of:

  • The non-artificially enhanced cultivation of one cannabis plant;
  • Possession of 100 grams or less of cannabis, 20 grams or less of cannabis resin;
  • Smoking or consumption of cannabis (except in a public place or a place prescribed by regulation);
  • Possession of equipment, such as pipes, for use in smoking or consumption.
COMMERCIAL PURPOSE OR SUPPLY
Where there is any suggestion that the possession or cultivation of less than the prescribed amount is for a “commercial purpose” or for “supply” the offence will not be considered as a simple cannabis offence, and “supply” includes supplying to friends on a casual social basis. Any commercial possession of equipment is also not considered a simple cannabis offence.

Expiation notices

A cannabis expiation notice can be either directly served on an alleged offender at the time of a simple cannabis offence or issued by post [see Expiation of Offences Act 1996 (SA) s 6(j)]. An alleged offender has twenty-eight days from (and including) the date of issue of the expiation notice to pay the expiation fee [see s 6(1)(c)]. A simple cannabis offence is expiated upon payment of the fee, making the offender no longer liable for prosecution for that offence [see s 15]. There is no court appearance and no conviction recorded.

Paying the expiation fee for a simple cannabis offence is not an admission of guilt or civil liability and it cannot be considered evidence of such [see Expiation of Offences Act 1996 (SA) s 15(4)]. The expiation of a simple cannabis offence cannot be referred to in any future reports assisting a court to determine sentence for any other offence [see s 15(4)(c)]. Any item seized in connection with the alleged offence is forfeited to the Crown upon expiation of the offence [see s 15(5)].

See Courts and Jurisdiction chapter for further information about the expiation of offences including time limits for the issue of expiation notices and for the commencement of prosecution.

Expiation reminder notices

When an alleged offender fails to pay the expiation amount for a simple cannabis offence, a reminder notice is issued. This will attract a further reminder notice fee. If payment of the expiation fee and reminder notice fee is not made, then the Registrar of the Magistrates Court or Youth Court is advised and administratively makes an enforcement order. The alleged offender is then taken to have been convicted and is fined the amount of the unpaid expiation fee with such amount being enforceable under the Fines Enforcement and Debt Recovery Act 2017 (SA) [See Courts and Jurisdiction chapter for further information about the enforcement of unpaid expiation fees].

Expiation fees for simple cannabis offences

The expiation fees for simple cannabis offences are set out in schedule 5 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) [see reg 14 and sch 5; and table below].

Expiation fees for simple cannabis offences (as at 10 October 2014)
Cultivation:
s 33K(2) Cultivation of one cannabis plant $300
s 33L(2)(a) Possession of cannabis:

Amount less than 25g
$150
Amount 25g or more but less than 100g $300
Possession of cannabis resin:

Amount less than 5g
$150
Amount 5g or more but less than 20g $300
Cannabis use:
s 33L(2)(b) Smoking or consuming cannabis, cannabis resin (other than an offence committed in a public or prescribed place) $150
Possession of equipment:
s 33L(2)(c) Possession of equipment (one or more pieces) for smoking or consuming, or for preparation of cannabis or cannabis resin for smoking or consuming (not being an offence involving possession of such equipment for a commercial purpose) $150
Where possession of equipment (as above) is accompanied by another simple cannabis offence relating to the possession, smoking or consumption of cannabis or cannabis resin $30

Prosecution of simple cannabis offences

Before a prosecution can commence for a simple cannabis offence, a cannabis expiation notice must first be given to the alleged offender stating that the offence may be expiated by payment of the prescribed expiation fee [see Controlled Substances Act 1984 (SA)s 45A(2)]. Non-compliance with the expiation procedure does not of itself invalidate a prosecution [see s 45A(7); and see Courts and Jurisdiction chapter for further information about time limits for the commencement of prosecution].

Defendants who elect to be prosecuted for the offence will be summonsed to appear in court [see Expiation of Offences Act 1996 (SA) ss 6(k) and 8]. In addition, defendants who are alleged to have consumed cannabis in a public or prescribed place will be summonsed to appear in court. A public or prescribed place includes a motor vehicle, train, tram or any other vehicle whilst located in a public place [see Controlled Substances Act 1984 ss 45A(8) and 33L(2)(b); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 15(3)]. Public place is widely defined and would include, for example, consumption inside a private vehicle parked in a hotel car park.

CHECK THE COURT FILE
The duty solicitor should always check with prosecution and on the court file to see whether a cannabis expiation notice was issued. Where a defendant finds themself before a court for a simple cannabis offence and no expiation notice has been given, the sentencing discretion should ordinarily be exercised so that the penalty does not exceed the amount of the appropriate expiation notice. Where court fees are to be paid this may entail reduction of the fine to take into account the extra cost of court fees.
Cannabis  :  Last Revised: Mon May 21st 2012