It is a criminal offence to be in possession of a prohibited drug in NSW. The weight of the drug is relevant to the seriousness of the offence, and therefore the likely sentence that will be imposed. For example, being in possession of 5 grams of cannabis is generally viewed as less serious than someone caught in possession of 50 grams of cannabis.

But what happens when someone is in possession of a very small amount of a prohibited drug, but it is contained within a mixture or substance that is of itself not illegal?

The answer is contained in section 4 of the Drug Misuse and Trafficking Act 1985, which states:

• “In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.”

As a result of this admixture provision, the entire weight of the substance is considered to be a prohibited drug.

Zoe Whetham recently represented a client who found himself in this position, after he was charged with being in possession of a very small amount of cannabis that he had baked into a banana cake. The cake was weighed by police to be 97 grams.

As a result of the admixture provision, our client was in a much more serious situation than he would have been if he had been in possession of the cannabis in its original form. This is because despite the cake containing only 2 grams of cannabis, the entire 97 grams is considered to be a prohibited drug. Being three times the small quantity for this type of drug, our client was extremely concerned about receiving a criminal record, which would impact his employment.

Zoe Whetham advised our client of the steps he could take to increase the chances of the court imposing a lenient sentence. Ms Whetham then assisted him to prepare strong subjective material, which was provided to the magistrate.

After making submissions that focused not only on our client’s individual case, but also referring the magistrate to the relevant caselaw, Ms Whetham was able to convince the court to not impose a conviction. Accordingly, our client was released without conviction, on the condition he be of good behaviour for 9 months.

Photo by Flora Westbrook