But many criminal lawyers are of the view that this principle is rarely applied in practice.
They will speak of certain magistrates and judges who seem to impose harsher penalties for drugs which they perceive to be more dangerous than others.
The aim of this blog is to determine whether the principle in Adams is being applied in drug possession cases. For that purpose, it is helpful to looking at sentencing statistics published by the Judicial Commission of NSW.
What Do the Statistics Say?
The statistics record a total of 32,007 people sentenced for drug possession between July 2011 and June 2015.
Drug possession is an offence under section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) which carries a maximum penalty of 2 years imprisonment and/or a fine of $2,200.
Despite the maximum penalty, Local Court Magistrates rarely hand out prison sentences for drug possession. The most common penalty overall is a fine, which comes with a criminal conviction.
Here is a breakdown of the penalties by drug type:
Most people who were guilty of possessing heroin received a fine (60%), followed by a section 9 good behaviour bond, which also comes with a criminal conviction (19%). 5% were sent to prison, with the vast majority serving sentences of 1 month or less.
However, some lucky individuals were dealt with by way of a section 10 dismissal or conditional release order – which means that a criminal conviction is not recorded even though the person is guilty. 5% received a section 10 good behaviour bond (now conditional release order without conviction) and 3% received a section 10(1)(a) dismissal. Another 6% were dealt with under section 10A, which means that a conviction is recorded but no other penalty is imposed.
Amphetamines were dealt with in a similar way to heroin: 63% of people received a fine only, while 12% received a section 9 good behaviour bond. The next most common penalty was a non conviction order – with 12% receiving a section 10 with a bond (now conditional release order without conviction) and 5% receiving a section 10 dismissal. A further 3% of people were dealt with under section 10A. 3% were sentenced to imprisonment, with most receiving a sentence of 1 month.
LSD was one of the least commonly detected drugs, with just 233 people appearing before the courts for possessing the drug between 2010 and 2015.
Most people found with LSD in their possession escaped a criminal conviction – 46% receiving a section 10 bond (now conditional release order without conviction), and a further 9% receiving a section 10 dismissal. Just 4% received a section 9 good behaviour bond. 39% received a fine.
Cocaine is widely considered to be one of the most addictive illegal substances, but it appears to be treated relatively leniently in court, with more people receiving a section 10 bond (now conditional release order without conviction) (47%) than a fine (36%). Just 5% received a section 9 bond, while 11% had the charges against them dismissed under section 10(1)(a).
Similarly, possessing ecstasy resulted in relatively lenient penalties: 49% receiving a section 10 bond (now conditional release order without conviction), while a further 20% had the charges against them dismissed altogether under section 10(1)(a). 28% received a fine only, while 3% received a section 9 bond.
Cannabis is widely considered to be the least harmful illicit drug – but contrary to this assumption, the statistics suggest that it is treated more harshly in court than ecstasy or cocaine.
A total of 70% of those guilty received a fine for this offence, with 9% being handed a section 9 bond, 8% receiving a section 10 bond (now conditional release order without conviction), and 7% receiving a section 10 dismissal.
A further 5% of people received a conviction but no other penalty under section 10A, while 1% were sent to prison.
Why the Difference in Statistics?
Some may be puzzled by the wide discrepancies in the statistics given the decision in Adams v The Queen, which stated that all drugs should be treated equally for the purpose of sentencing.
Many would be especially surprised that over 70% of those caught in possession of cannabis received criminal convictions – compared to just 41% of those who were guilty of possessing cocaine, which is widely considered to be a more harmful and addictive drug than marijuana.
However, it is important to bear in mind that those who are brought before the courts for possessing cannabis are likely to either be in possession of more than 15 grams, or have been cautioned for possession in the past.
The cannabis cautioning scheme allows police to exercise their discretion and issue a caution to those found with 15 grams or less of cannabis, instead of sending them to court.
The caution is contained on a slip of paper which includes a person’s details and advises them about the risks and legal consequences of using cannabis. It also contains contact information for the Alcohol and Drug Information Service, which provides treatment and support services to those who are battling drug addiction.
A person can receive up to two cannabis cautions before they must be formally charged with drug possession and sent to court. Cannabis cautions cannot be issued to those who have prior convictions for drug cases, or for sexual or violent offences.
Importantly, the fact that a person has had prior cannabis cautions can be taken into account by the magistrate when sentencing a person for other subsequent offences.
While this may explain the discrepancy in statistics between cannabis and other drugs, it does not explain why those found with heroin and amphetamines receive harsher sentences than those found with cocaine.
However, a closer look at the statistics may reveal the source of the discrepancies: more than a third of those charged with possessing heroin have had prior convictions for the same offence – and over 90% have had at least one prior criminal conviction for some kind of criminal offence.
Similarly, 35% of those who were in possession of amphetamines have had a prior conviction for the same offence; and 76% had a prior conviction for a crime of some type.
In comparison, most of those found in possession of cocaine had no prior convictions (56%) – and just 13% were guilty of the same offence in the past.
Taking all of those factors into account, there is an argument that the Local Courts appear to be treating prohibited drugs in a relatively consistent way, in accordance with the decision of Adams.