What is a ‘simple’ cannabis offence?

A simple cannabis offence applies to offences of possessing up to 100 grams of cannabis, or 20 grams of cannabis resin, or smoking cannabis in private, or possessing equipment (for example, pipes, bongs) or cultivating not more than 1 cannabis plant [Controlled Substances Act 1984 (SA) s 45A].

Cannabis Expiation Notice

Where a person commits a ‘simple’ cannabis offence they may be issued with a Cannabis Expiation Notice by the police rather than a summons to attend court [see s 45A(2)]. This requires payment of an ‘on the spot’ fine and allows an individual to avoid prosecution in court.

The expiation notice must be given to the alleged offender stating that the offence may be expiated by payment to the Commissioner of Police of the prescribed expiation fee before the expiration of 28 days from the date of the notice. The notice may be given personally to the alleged offender or posted to his or her last known place of residence.

No prosecution for expiated offences

Where the offence is expiated (that is, the fee paid within time) no prosecution for the offence shall proceed. In addition, the payment of an expiation fee will not be regarded as an admission of guilt [Expiation of Offences Act 1996 (SA) s 15(4)]. If the amount of the expiation notice is not paid enforcement proceedings may be undertaken, or the expiation notice may be withdrawn and a summons to attend court may be issued [s 16(1)(b)]. If the offence is expiated, any substance and equipment may also be forfeited [s 15(5)].

Reminder notice

If an expiation notice is not paid, an expiation reminder notice is issued and a reminder fee is added to the amount owing [s 11]. Enforcement proceedings will be taken by the Fines Enforcement and Recovery Unit to recover the amount and enforcement costs [see The Sentencing process]. The matter would not normally go to court unless the offence is disputed.

Prosecution only after expiation notice issued

A prosecution in court for a 'simple cannabis offences' can only be commenced after the person has been given an expiation notice [Controlled Substances Act 1984 (SA) s 45A(2)]. In the event that a summons is issued instead, then the court hearing should be adjourned to enable the Police to give the person the opportunity of being served with an expiation notice and expiating the offence. This is desirable as, if the matter is expiated, no criminal record results.

Hydroponically grown cannabis excluded

Cannabis grown hydroponically is specifically excluded from the Cannabis Expiation Notice scheme [Controlled Substances Act 1984 (SA) s 45A(8)].

Possession in a public place

An offence for smoking in a public place may not be dealt with in this way [see s 45A(8)(c)(i)]. Regulation 15 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) says that this includes smoking in a motor vehicle or in public transport which is in a public place. People who get caught smoking cannabis in hotel car parks and similar public places may be prosecuted and convicted in court [see Controlled Substances Act 1984 (SA) s 45A(8)(c)].

Commercial purpose attracts higher penalties

If there is any suggestion that the possession or cultivation of less than the prescribed amount is for a 'commercial purpose', then the offence attracts greater penalties.

Higher penalty even for own use if quantity exceeds 1 plant

Where a person is found guilty of cultivating between 2-5 plants, the maximum penalty in such cases is $2 000 or 2 years imprisonment, or both [s 33K(2)]. When the number of plants is over 5 but under 10, the maximum penalty is 2 years imprisonment and/or a fine of $2000 [Controlled Substances Act 1984 (SA) s 33K(1)(a)(ii)]. However for an aggravated offence, or a basic offence where the offender is a serious drug offender, the maximum penalty increases to a fine of up to $5 000 and/or imprisonment for 5 years [ss 33K(1)(a)(i); 33K(1)(b)]. If a person is able to prove that the plants were for personal use or supply and not sale, regardless of the number, then this penalty will also apply. However, this would be difficult with large numbers of plants.

[Expiation fees set out in Schedule 5 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA)]

More serious charges likely if evidence of sale or supply

If a person has no drugs, or only a small amount, but there is evidence that the person has sold or supplied drugs (even sharing with a friend), the person will face a more serious charge and will have to appear in court. The penalties for sale are more severe than for supply.