A Perth woman caught selling synthetic cannabis from her Innaloo gift shop has avoided jail after waiting 31/2 years to be sentenced because of confusion surrounding synthetic drug laws.

When police raided Vivienne Hill’s Morris Place store Chuffed Gifts and More in May 2013, they seized 4.6kg of “green leafy material”, $12,000 in cash and a further $250,000 at her Bayswater home.

After an extensive analysis of the material, it was found 927g contained the banned psychoactive substance UR-144.

Hill pleaded guilty to possessing a synthetic cannabinomimetic with the intent to sell or supply. A cannabinomimetic substance has similar effects to cannabis.

She was not convicted in relation to the remainder of the material because the prosecution could not prove it was illegal.

The maximum sentence for that offence is up to 25 years jail and a fine up to $100,000, but District Court Judge Michael Gething last month gave Hill a 12-month suspended jail term and a $25,000 fine, partly because of the “significant delay” between her being charged and sentenced.

“You’ve had this offence hanging over you for a period of three years and in particular hanging over you the very real prospect of going to prison,” Judge Gething said.

The $262,000 was returned to Hill after it was found the money was proceeds of her legitimate business.

Prosecutor Hannah Milligan said the State had grappled with what was a “fairly new type of prosecution” because the law surrounding the prohibition of synthetic cannabinomimetics was different to the law surrounding other illicit substances.

Ms Milligan said the delay was also because prosecutors needed to obtain an expert neuropharmacological report to establish whether the chemical compounds were prohibited.

Hill’s lawyer Mark Andrews said his client did not set out deliberately to sell illegal drugs and went to “considerable lengths” to ensure the products she stocked were lawful, however she relied solely on information from her suppliers.

Mr Andrews said his client was not prosecuted for a majority of the material because she was charged when synthetic drug manufacturers were playing a “cat-and-mouse” game with the government by tweaking chemical compounds as soon as they were banned.

“I think it’s fair to say that most of that delay, and no criticism is levelled at the State for this because it was an uncertain area of the law, is attributable to the fact that there was some confusion over the prevailing lawful position,” he said. “So of course if our legislatures and prosecutors and courts are somewhat confused about the true position, one can readily understand how someone like Ms Hill could likewise be led into error in relation to whether a substance is prohibited or not.”

State Parliament passed new legislation in October 2015 to clamp down on the sale and supply of synthetic drugs, closing the legal loophole exploited by manufacturers.

The new laws banned the sale, supply, manufacture, advertising and promotion of any psychoactive substance that was not already captured by existing legislation.

A LEADING Perth criminal lawyer says there is “little chance” that fallen footballer Ben Cousins will be jailed if convicted over his drug charge.

Mark Andrews said Cousins, 33, would most likely escape with a fine or community order and the charge of possessing a prohibited drug with intent to sell or supply might be downgraded to simple possession.

It comes as an ex-staffer at the Teen Challenge rehab facility, where Cousins was receiving treatment, said it was likely he would be given a second chance to attend the program.

Cousins was charged with possession of 4.56g of methylamphetamine at Esperance airport on Tuesday.

Mr Andrews said the amount went beyond the 4g threshold, meaning the case must go to the District Court instead of being dealt with by a magistrate.

“At the end of the day, 4.5g is not a lot of drugs,” Mr Andrews said.”I have got clients who use up to 1g a day.”

Last year Mr Andrews represented WA Police Commissioner Karl O’Callaghan’s son, Russell, who admitted attempting to manufacture methylamphetamine and was sentenced to 16 months jail.

“Even if (Cousins) was convicted of possession with intent, I think it is very unlikely he would be sent to jail,” Mr Andrews said.

“It is more likely he would be sentenced to some form of intensive supervision order, where he would undergo rehab and regular urine testing for drugs, or a conditional suspended term of imprisonment which is the same thing coupled with a suspended jail term.

“If he breaches that sentence by not doing rehab or reoffending, he would likely be ordered to do the jail time.”

Mr Andrews said Cousins’ lawyers would almost certainly argue the drugs were for his personal use only.

“Because the amount is in excess of 2g, there is a legal presumption that he intended to sell or supply the drug,” he said.

“But it is a rebuttable presumption, and it has only got to be rebutted on the balance of probabilities, which is the lower standard.”

In a sign of hope for the fallen football star, a staff member who worked at Teen Challenge for eight years said it was likely the Esperance rehabilitation facility would let him return if he wanted to get better and comply with the rules.

The staff member, who did not want her name published, said returning to the program could change Cousins’ life.

A warrant has been issued for the arrest of the eminent historian and art critic Robert Hughes, who failed to appear in an Australian court to answer dangerous driving charges.

Mr Hughes’ lawyer said that the Australian-born critic, who still suffers injuries from the crash, was advised by an orthopaedic surgeon that he was not well enough to travel from his home in New York to Perth, where he was due to present himself before magistrates.

Mr Hughes, 64, has long been derided by scornful Australians as “the fatal bore”, after his most famous work, The Fatal Shore. But his transformation into one of Western Australia’s most wanted men is the latest twist in an extraordinary saga which began when he almost died in the car crash on a west-coast fishing trip three years ago.

The prosecution argues that Mr Hughes, who was also filming the BBC documentary Beyond the Fatal Shore at the time, was speeding and driving on the wrong side of the outback road when he collided with another vehicle.

The charges of dangerous driving and causing grievous bodily harm were dropped when two witnesses were charged with conspiracy to pervert the course of justice.

The witnesses, one the driver of the second car, had tried to extort £10,000 from Mr Hughes in exchange for false testimony. “It’s amazing what sort of low-life you can run into on the road,” Mr Hughes said when the case was dropped in May 2000.

Six months later the Australian supreme court ruled that the trial should be reopened.

Mr Hughes’ lawyer, Mark Andrews, said he was mystified by the prosecution’s pursuit of his client, who is internationally respected but in Australia shares the scorn many reserve for high-profile expatriates who criticise the country they have left.

“He’s no Christopher Skase,” Mr Andrews said, referring to the fugitive Australian businessman who evaded arrest for years in exile in Spain.

In a statement from New York, Mr Hughes said: “Let me make this quite clear: nobody has a greater desire to dispose of this matter than I. When I last appeared, voluntarily and without any compulsion, I was acquitted.”

Mr Hughes travelled to Australia last year for the funeral of his son, who committed suicide in the Blue Mountains.

The court has set another hearing date for July 4 to give Mr Hughes time to recover.

Two Special Air Service soldiers have appeared in court following allegations they were involved in a plot to attack a woman and cause her to have a miscarriage.

The West Australian police organised crime unit has been investigating allegations that one of the soldiers, whose girlfriend was pregnant, was involved in a plot to recruit a colleague and others to attack the woman and cause a miscarriage.

The two soldiers, whose identities are suppressed, are due back in Perth Magistrates Court this month, when more charges are expected to be laid against a number of people. The two soldiers were charged last Tuesday. – the day before Prime Minister John Howard visited Western Australia to see three unit citations presented to the regiment.

Russell O’Callaghan, 29, was badly burnt when a blast tore a hole through the roof of a state housing unit in Perth. He has been in hospital since the incident on March 20 and is in a stable condition.

After the explosion, which also injured five others, he was charged with attempting to manufacture amphetamine.

His first court appearance was yesterday in Perth Magistrates Court but he was excused from attending after his lawyer Mark Andrews presented a medical certificate.

Mr Andrews told the court it was not known when Mr O’Callaghan would be discharged from hospital but on his release he would go to a drug rehabilitation facility. He said a preliminary report from the state government chemist had shown that the lab would have produced only 1.2g of amphetamine.

“I don’t think anyone is suggesting that this was a sophisticated, commercial operation,” he told magistrate Giuseppe Cicchini.

To avoid a conflict of interest, a lawyer from the Director of Public Prosecutions, instead of the police, appeared for the prosecution yesterday.

Another man charged over the incident, Jason Lee Marzoli, also appeared in court and was granted bail on strict conditions, including a 12-hour curfew.

He lived in the home where the explosion took place and as part of his bail conditions is not allowed to return to the property unless he has permission from the police.

Both Mr O’Callaghan and Mr Marzoli are due back in court later this month.

Commissioner O’Callaghan has said he was shocked to see the extent of his son’s burns and he had come “within a hair’s breadth of losing his life”.

The incident led the commissioner to speak of the tension between trying to be a good dad and a good top cop.

“There’s always that conflict between being the Commissioner of Police and being the father,” an emotional Mr O’Callaghan said at the time.

The art critic Robert Hughes faces arrest if he steps on West Australian soil after he failed to appear in court on dangerous driving charges yesterday.

Perth magistrate Len Roberts issued the arrest warrant for Hughes, despite his claim that he was unfit to travel from his home in New York.