Courts Are Becoming Sympathetic to the Cause of Medicinal Cannabis

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Cannabis oil

It’s estimated that around 100,000 patients are using cannabis medicines across the country. And even though the federal government legalising medicinal cannabis close to three years ago, most of these patients are forced to access their medicine on the black market.

Despite government moves to cut some of the red tape around access, it’s near impossible for most patients to obtain a prescription for cannabis medicine. As of last month, the Therapeutic Goods Administration had only approved 2,339 medicinal cannabis applications.

Since November 2016, the Office of Drug Control has issued a mere 49 cannabis-related licences. And the first Australian produced product only hit the market in August, which means the majority of approved patients have to access exorbitantly priced imported medicines.

Lucy Haslam is the advocate who brought the cause of medicinal cannabis to middle Australia, so that now 90 percent of the population support its use. Back in March this year, Ms Haslam described the medicinal cannabis system in this country as “an absolute mess”.

However, there have been a number of recent cases that have involved the production and supply of medicinal cannabis that reveal attitudes within the judiciary and indeed, within Australian courts have become sympathetic to the cause of cannabis medicine and its illicit use in the community.

Caring for their own

On 10 December, Jamie Blake and his partner Stephanie McKay stood trial in the Rockhampton Supreme Court over drug charges that came about as a result of providing their autistic son with cannabis medicine, which was improving his quality of life.

The Central Queensland couple had multiple charges against them, including the aggravated supply of a dangerous drug to a minor under 16, which carries a maximum of up to 25 years behind bars. However, they received a total of $900 in fines between them and no convictions were recorded.

Mr Blake told Sydney Criminal Lawyers® a week before his trial that the cannabis medicine was providing his son with “unbelievable benefits”, which allowed him to hold a conversation. And the type of cannabis oil the boy was taking contained no psychoactive content.

Justice Graeme Crow said he accepted that the parents had administered the medicine to their son for “altruistic” reasons and no harm had been done. And he added that upcoming changes to state laws might mean the couple can soon legally obtain cannabis medicine for their child.

Not guilty on all charges

Prominent medicinal cannabis practitioner Dr Andrew Katelaris was acquitted by a NSW District Court jury on a number of very serious drug charges in late November. These included the large commercial supply and manufacture of cannabis oil.

Facing up to life imprisonment, the doctor represented himself in court and successfully argued a defence of medical necessity, meaning his patients’ needs were so drastic that he was forced to break the law to provide them with adequate treatment.

The doctor revealed soon after the verdict was returned that an appearance on national television where he revealed his laboratory was a calculated act of civil disobedience that he expected to result in his arrest, so that he could test the defence for the benefit of all cannabis oil producers.

And at a NSW Supreme Court hearing last July, a three justice panel granted Dr Katelaris bail, stating he didn’t present as a typical drug dealer, but rather a legitimate “crusader for the cause of legalisation of cannabis for medical use,” who’s actions weren’t in the pursuit of financial gain.

Providing for the flock

On 25 October, Barry John Futter was sentenced in the Newcastle District Court, after having pled guilty to one count of cultivating a large commercial supply of cannabis plants by enhanced indoor means and another count of drug supply.

The charges were in relation to a raid that was carried out on Mr Futter’s Newcastle residence in December 2016. The 215 cannabis plants that were seized at the time were set to be distributed free-of-charge to patients registered with the Church of Ubuntu.

Known as BJ to his friends, Mr Futter could have been sent to prison for up to 20 years for the charge of cultivation. However, Judge Roy Ellis imposed a conditional release order with no conviction recorded, meaning Futter entered into a 12 month good behaviour bond.

The judge stated that while no distinction between the profitable growing of cannabis for recreational purposes and the not-for-profit cultivation for medicinal needs can yet be found in NSW law, it should be present in the sentencing principles applied in the state’s courts.

Judicial social change

“It’s nice to know the cannabis truth is finally hitting home at the level of judiciary,” said Mr Futter just days after his trial. And he likened its outcome to recent developments that happened in the South African courts.

The highest court in South Africa upheld a lower court ruling on 18 September that found the criminalisation of cannabis was unconstitutional. This effectively legalised the home use and cultivation of the plant throughout the country.

Expediting patient access

The legal medicinal cannabis market has been making some slow progress of late. Little Green Pharma released the first locally grown and produced product. A just released study found the price of licit medicine has dropped by 50 percent and the amount available has grown threefold.

However, many patients who are currently taking locally produced medicines assert that products made by pharmaceutical companies are inferior to whole plant products. And Dr Katelaris is calling for a moratorium for those using illicit cannabis medicines and their carers and suppliers.

The NZ government just passed laws allowing for the establishment of a legal system of cultivation and production of medicinal cannabis products. And this legislation also provides a legal defence for terminally ill patients using illegally produced cannabis prior to the licit products hitting the market.

NSW Labor MLC Adam Searle is set to reintroduce his medicinal cannabis access bill into parliament next year. It would allow patients with serious conditions to possess black market cannabis, as well as set up a legal supply chain for both pharmaceutical and botanical products.

And with an imminent change of government coming up in the March state election, perhaps Mr Searle’s bill will be passed by a new government and bring about some necessary change to the local cannabis climate.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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