Drugs and the law - Hot Topics 59 - Find Legal Answers

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Diversionfrom the criminal justice systemRecently there have been several initiatives thataim to divert some minor drug offenders fromthe criminal justice system (through cautioning),and to encourage drug dependent offenders intotreatment programs (through drug courts).cannabis cauTiOningNSW police have an official discretion to caution adultsfor minor cannabis offences, and to caution people under18 for minor offences involving any prohibited drug.For adultsThe official police guidelines recommend that policeofficers use their discretion to issue an official caution,rather than charge a person over 18 who is found:> in possession of 15 grams or less of cannabis, or> using cannabis, or> in possession of smoking implements (a pipe orbong).There is no need for the police to weigh the drug, as longas they are satisfied that the amount involved is under the15 gram limit.The cautioning scheme for adults does not includecultivation of cannabis, even for small numbers ofplants.guidelinesThe guidelines provide that to qualify for a caution, theperson must:> admit the offence> have no criminal history for drug offences (includingpossession), sexual assault or other offences involvingviolence> have received no more than two cannabis cautionspreviously> establish their identity (normal checks on identity willbe carried out)> satisfy the police that the cannabis is for personal useonly> have no other charges that must be determined incourt anyway. (For example, if the police find a fewgrams of cannabis in the pocket of a person chargedwith stealing, both the theft charge and the drugpossession charge will go to court.)As well, there is an overriding discretion in the hands ofpolice. So even if these guidelines are satisfied, the policecan still decide to prosecute.procedureCannabis cautions to adults are issued on the spot.The police will give the person a cannabis cautioningnotice, a pamphlet about the legal status of cannabis andinformation on the health consequences of cannabis use.Their name and address will be recorded on the policecomputer system.If an adult receives a second cannabis caution, they arereferred to a compulsory drug education session.Drug offence cautions for people under 18For people under 18, the discretion to not prosecuteapplies to minor offences involving other drugs as wellas cannabis, and to cannabis cultivation.For young people, the drug cautioning system is part ofa range of alternative systems under the Young OffendersAct 1997 to divert young people from courts and prisons.Those alternatives are formal police cautions, warningsand conferences (where the offender and the victim meetto discuss the impact of the offence and determine anoutcome plan). Conferences for drug offences are rare,and are only used where there is another offence that isto be dealt with at a conference.Diversion from the criminal justice system 25
What offences can be dealt with?The following drug offences can be dealt with under theYoung Offenders Act:> possession of 15 grams of cannabis or less> possession of smoking implements> cultivation of no more than five cannabis plants> possession of no more than one gram of heroin,cocaine or amphetamine> possession of no more than 0.0008 grams of LSD> possession of no more than 0.25 grams of ecstasy> use of a prohibited drug.As for adults, the police must accept that the drugs arefor personal use rather than supply, the young personmust admit the offence, and there must be no otheroffences committed or suspected that would require theperson to go to court anyway. The person has the right toobtain legal advice before making an admission of guilt.proceduresA juvenile caution is not administered on the spot, but aweek or so later at a police station or another place (forexample, a youth centre). The caution can be given by apolice officer or someone else (such as a drug and alcoholworker).There is no limit on how many juvenile cautions can beissued to a young person, and no strict guidelines aboutprior criminal records. But cautions are discretionary– so presumably, the more cautions a person has, the lesslikely it is they will get a caution again.WarningsWarnings can also be used. A warning is less formal thana caution, and is issued on the spot by a police officer.The young person does not have to admit guilt, but theymust supply their name and address.drug cOurTsThere are presently three separate types of drug courtin NSW:> the Drug Court at Parramatta> the Youth Drug and Alcohol Court> the Local Court’s MERIT scheme.The Parramatta Drug Court has been operating sinceearly 1999. The court’s statutory object is to reduce drugrelatedcriminal activity by diverting drug dependentoffenders to rehabilitation programs.The Drug Court is a sentencing court, with thejurisdiction of both the Local Court and the DistrictCourt. Offenders are referred to the Drug Court byother courts (from western Sydney only).To be eligible to be dealt with by the Drug Court, anoffender must:> be apparently dependent on a prohibited drug (notalcohol)> plead guilty, and> have been charged with an offence which is ‘highlylikely’ in the circumstances (for example, the offender’sprior record) to result in their imprisonment.If a person is charged with an indictable offence underthe Drug Misuse and Trafficking Act which cannotbe dealt with summarily (for example, supply of acommercial quantity of a prohibited drug), or an offenceinvolving ‘violent conduct’ or sexual assault, they are noteligible for sentencing by the Drug Court.alternatives to punishmentThe Drug Court can, instead of imposing a punishment,require an offender to participate in an ongoingrehabilitation program, under court supervision. Unlikea conventional court, the Drug Court encourages acollaborative involvement of judge, defence lawyer,prosecutor and clinical staff in determining how a matteris dealt with. Typical program orders might includeattendance at counselling or other therapy sessions,and regular drug testing. The Court can also imposeconventional punishment.action by the courtThe offender must agree to the program of treatmentand conditions proposed by the court. The conditions ofa person’s program can be varied by the court.As well as determining a program for the offender, theDrug Court must also impose a penalty for the offence,but it immediately suspends the sentence. If the offendersatisfactorily completes the program, that will be takeninto account in determining the final sentence, such asa good behaviour bond. The final sentence cannot behigher than the original suspended sentence.THe yOuTH drug and alcOHOl cOurTA Youth Drug and Alcohol Court (modelled on theParramatta Drug Court) has been established in someparts of Sydney.The Youth Drug and Alcohol Court operates fromCobham, Bidura and Campbelltown, with participantsreferred from other Children’s Courts. Places in theYouth Drug and Alcohol Court program are limited.26HOT TOPICS 59 > Drugs and the law
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