Cannabis and other Class C drugs
Possession or use of cannabis or other Class C drugs
It will be rare for the police to bring a charge against you just for possession of a class C drug like cannabis if you haven’t committed any other offences at the same time. Usually class C possession charges are brought in addition to other charges like assault, disorderly behaviour, resisting arrest, or receiving stolen property.
When there’s no other offending, the police are likely to deal with class C possession with a warning. If they do charge you, you may qualify for the police “diversion” scheme or be able to get a discharge without conviction, both of which will prevent you getting a criminal conviction, see the chapter “The criminal courts”, under “Alternatives to going to court: Diversion and restorative justice” and “Sentencing: The judge’s decision about punishment”.
If you’re convicted of possessing or using cannabis (marijuana) or some other Class C drug, the maximum penalty is three months’ jail or a fine of up to $500, or both.
What do the police have to prove to get a conviction?
Misuse of Drugs Act 1975, s 29; Cases:  2 NZLR 275 (CA); (1993) 10 CRNZ 61 (CA);  1 NZLR 488 (CA)
To get a conviction for possession, the police have to prove all of the following things beyond a reasonable doubt:
- exactly what the drug was
- that you had control of the drug, and that you intended to exercise control (even if you had left the drug temporarily with someone else to look after and intended to get it back from them later)
- that you knew it was an illegal drug (although not necessarily exactly which illegal drug it was).
Because the police have to prove you knew the drug was illegal, you’ll have a defence if, for example, you had magic mushrooms on you but you thought they were legal.
Misuse of Drugs Act 1975, s 29A; Case:  2 NZLR 476 (CA)
For you to be convicted, the drug has to be found in a useable quantity, not just a measurable quantity. So you can’t be convicted of possession if, for example, the police find only some small traces or particles of cannabis along with some cigarette papers in a tin. However, the police only have to specifically prove it was a usable amount if you raise this issue in your defence.
What sentence am I likely to get for a first conviction?
If it’s your first conviction for Class C possession, you’ll probably just get a fine, and possibly for a second conviction as well.
After that you may get a community-based sentence like community work, through to a short jail term for further offences.
Misuse of Drugs Act 1975, s 7(2)
Note: The Misuse of Drugs Act makes it difficult to jail people for Class C possession or use – it says the judge can jail them only if they think this is necessary because of your previous convictions or because of some other “exceptional circumstances”.
If it’s your first offence you may qualify for “diversion”. This is where the police agree to drop the charges against you if you admit responsibility and satisfy some conditions – which might include, for example, doing a drug and alcohol programme or some community work, see the chapter “The criminal courts”, under “Ways to stay out of court: Diversion and restorative justice”.
Instead of police diversion, you may be able to get the judge to give you a discharge without conviction, and in that case you’ll be released without getting a criminal record. You’ll need to persuade the judge that the consequences for you of getting a conviction would be out of proportion to what you did – for example, if you’d lose your job and be unable to support your family. See the chapter “The criminal courts”, under “Sentencing”.
Medical use of cannabis
Misuse of Drugs Act 1975, ss 7(1), 8; Misuse of Drugs Regulations 1977, reg 22; Misuse of Drugs (Medicinal Cannabis) Amendment Act 2018; Misuse of Drugs (Medicinal Cannabis) Regulations 2019
Your doctor can legally prescribe you certain kinds of medicinal cannabis products that have been approved by the Ministry of Health. These products are Class B controlled drugs. As of 1 April 2020, Cannabidoil (CBD) is available on prescription under the Medicinal Cannabis Scheme. Currently you can be prescribed SativexTM, Tilray P, Tilray FS and as of 7 October 2021, SubDropsTM – the first locally made approved product. You must pay the full price for all of these products.
For the most up to date list of approved medicinal cannabis products, go to www.health.govt.nz and search “Medicinal cannabis products that meet the minimum quality standard”.
Growing or dealing in cannabis
Dealing in cannabis or other Class C drugs
Misuse of Drugs Act 1975, s 6(1)(d), (1)(e), (2)(c)
The maximum penalty for dealing in cannabis or other Class C drugs is eight years’ jail.
You can be convicted as a dealer in Class C drugs if you:
- sell them to anyone, or offer to sell them, or
- simply give the drugs to someone who’s under 18, or offer to give the drugs to them.
This is a Category 3 offence, which means that if you plead not guilty, you’ll have the right to choose either a jury trial in the District Court or a trial in front of a District Court judge alone.
Criminal Procedure Act 2011, ss 6, 73
Dealing in cannabis or other Class C drugs is likely to get you a jail term, even if you’re only a first offender dealing in small amounts. If you sell to people under 18, the judge will see this as particularly serious.
Cases:  1 NZLR 412 (CA);  9 CRNZ 178 (CA); (1994) 12 CRNZ 151 (HC)
Note: If you give – as opposing to selling – Class C drugs to someone who’s 18 or older, the penalties are the same as for simple possession or use of Class C drugs. For a first offence you’ll probably just get a fine of up to $500 (for more information on this, see above “Possessing or using cannabis or other Class C drugs”).
Cases:  1 NZLR 412 (CA);  9 CRNZ 178 (CA); (1994) 12 CRNZ 151 (HC)
If you have a certain amount of illegal drugs in your possession, the law assumes you’re a dealer and you have to prove that you’re not. For cannabis, this threshold amount is 28 grams, or 100 cannabis cigarettes.
If you have more than this amount, you’ll have to present evidence in your defence to prove that you didn’t intend to sell or offer them for sale (or give, or offer to give them, to the person who is under 18). You’ll have to prove your claim “on the balance of probabilities” – that is, convince the judge (or jury if you’ve chosen a jury trial) that your claim is more likely than not to be true.
Misuse of Drugs Act 1975, s 9; s 2(1), definition of “cultivate”
The maximum penalty for growing cannabis (“cultivating” it) or any other illegal plant is seven years’ jail. This includes sowing or planting cannabis.
The type and level of sentence you get in your particular case will depend on how much you’re growing and whether or not you’re dealing:
- “Minor”: Mainly personal use – if you’re growing a small number of plants for your personal use only, you’ll almost always just get a fine or a community-based sentence like community work. If you’ve given – not sold – some of the cannabis to others, the fine is likely to be more. In more serious cases at this level, or for repeat offending, you could get a short term of home detention or jail.
- “Moderate”: Small commercial operations – if you’re growing cannabis as a commercial operation, but only on a small scale, the starting point for sentencing will usually be two to four years’ jail. However, the starting point might be under two years if the amounts are very small or the sales are very infrequent.
- “Serious”: Large-scale commercial growing – if it’s large-scale commercial growing, with annual revenues in the hundreds of thousands of dollars, and with a sophisticated, well-organised operation, the starting point is likely to be four or more years’ jail.
Note: The “starting point” means the level of sentence the judge initially decides on based simply on how bad the offending was, before looking at you and your situation to decide whether your sentence should have any “uplifts” for aggravating features (like previous offending) or “discounts” for mitigating features (like a guilty plea). See “How criminal sentencing works” at the start of this chapter.