In NSW, the law says that all ‘prohibited drugs’ are to be treated the same way when it comes to imposing penalties for drug offences.
This means that, under the law, drugs such as cannabis, ecstasy, heroin and ice carry the same maximum penalties despite research to suggest that different drugs have different degrees of addictiveness, and vary significantly in terms of the amount of harm caused to individuals and the community.
Possessing any prohibited drug – regardless of the type – comes with a maximum penalty of 2 years imprisonment and or a $2,200 fine.
But does this ‘one size fits all’ approach make sense?
The government says that certain drugs are banned because they are harmful to the user and society generally – but why should drugs like cannabis, which is not highly addictive and does not normally lead to aggression, be treated the same way as highly addictive drugs like ice, which is extremely addictive, highly destructive to the user and linked to violence?
This logical inconsistency was recognised and partially addressed with the introduction of the Cannabis Cautioning Scheme in 2000.
The Cannabis Cautioning Scheme
In NSW, police officers who find a person in possession of 15 grams or less of cannabis can decide not to charge them with drug possession, but issue them with a caution instead. This means that the person does not go to court and does not receive a criminal conviction.
Cannabis cautions cannot be given to people that have prior convictions for drug offences, or offences involving violence or sexual assault, and a maximum of two cautions can be given to any one person.
The Cannabis Cautioning Scheme came about after the NSW Drug Summit found that arresting people on minor drug charges was an ineffective means of combating drug use and supply.
While this was a step in the right direction, it is inconsistent with a 2008 High Court case which found that the harm created by a drug does not enter the equation when it comes to sentencing.
What did the High Court say?
In the case of Adams v The Queen (2008), Steven Adams was convicted of possessing a “commercial quantity” of MDMA, or ‘ecstacy’. He argued that the court should have taken into account the fact that ecstacy is less harmful than heroin.
The High Court decided that there was no legislative basis for differentiating between prohibited drugs when it comes to sentencing – and that there were no grounds for the court to institute its own level of punishments based on the harmfulness of different drugs.
But how can this decision be reconciled with the Cannabis Cautioning Scheme?
In other words, why is it that a person caught with cannabis, and not, for example, ecstasy, can receive a caution for drug possession if the highest court in the land has made it clear that all drugs are to be treated equally regardless of the level of harm?
If you are charged with possessing ecstasy (or another prohibited drug other than cannabis), highlighting this inconsistency to the Magistrate may help to convince the court to give you a section 10 dismissal or conditional release order, which means no criminal record.
While this may be good news for people facing drug possession charges, it blurs the distinction between drugs which are very harmful and those which are not as harmful.
Should the law distinguish between drugs based on harm?
Interestingly, the law in both New Zealand and Canada grades drugs based upon their level of harmfulness, and prescribes maximum penalties accordingly.
Section 3A of the New Zealand Misuse of Drugs Act 1975 states that “the classification of a drug is based on the risk of harm the drug poses to individuals, or to society, by its misuse.”
There are three categories of drugs under this system:
1. Class A – drugs which pose a very high risk of harm
2. Class B – drugs which pose a high risk of harm
3. Class C – drugs which pose a moderate risk of harm
In Australia, the justification for criminalising drugs is that they are responsible for a great deal of harm to the user, their families and the community.
But this blanket approach fails to distinguish between the marked differences in harm caused by different types of drugs.
If drugs are not to be decriminalised or legalised, perhaps a better way to deal with the issue of penalties is to utilise existing research to grade drugs based upon harmfulness; as has already been done in New Zealand and Canada.