Author Archives: Ugur Nedim

As discussed in a recent blog, the majority of the High Court in Adams v The Queen (2008) said that all prohibited drugs are to be treated equally when it comes to imposing penalties.

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:

Heroin

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

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

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

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).

Ecstasy

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

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.

Cannabis is the most commonly used recreational drug in the world, with an esimated 2.5% of people around the globe estimate it each year – and around 10.6% of the population in Australia consuming it at least once annually.

And with more and more countries giving the green light to medical marijuana, there has been an increasing focus on the potential health benefits of cannabis. But what about the risks for lung health – and how do they compare to smoking cigarettes?

The Thorax Study

Back in 2007, scientific journal Thorax published a study comparing the effects of smoking cannabis with smoking cigarettes.

Researchers compared the lung function and high-resolution CT scans of 75 cannabis-only smokers, 92 tobacco-only smokers, 81 non-smokers and 91 people who smoked both cannabis and tobacco. Those in the cannabis-only group smoked at least one joint per day, while those in the tobacco-only group smoked at least 20 cigarettes per day.

They found that while there was a ‘dose -response relationship between cannabis consumption and the degree of airways obstruction and hyperinflation,’ those who smoked cannabis alone were significantly less likely to develop chronic lung diseases such as emphysema.

In fact, just 1% of cannabis-only smokers developed the illness, compared to 16% of cannabis and tobacco smokers, and 19% of tobacco only smokers.

And while they found that chronic cannabis use is linked to certain adverse health illnesses, including bronchitis, psychotic illnesses, and some impaired lung function, there was less evidence to support a link between smoking cannabis and more serious illnesses such as lung cancer and birth defects in children.

In contrast, there is compelling evidence linking tobacco smoking with a long list of serious health problems.

However, researchers did find that smoking cannabis was linked to airway obstruction and hyperinflation – both of which are common signs of lung problems. They also found that a single joint of cannabis was equivalent to 2.5 cigarettes when lung function tests were carried out – and up to 6 cigarettes when airway function tests were conducted.

The Findings Explained

The fact that a single joint is significantly more harmful than a cigarette might seem at odds with the finding that cannabis smokers are much less likely to develop emphysema.

Dr Jonathon Foulds, a UK-based scientist who has spent considerable time studying the effects of smoking, says that the data can be explained by the different ways in which cannabis and tobacco are smoked:

‘A cannabis joint is typically smoked with greater intensity, with larger puff volumes and breath holding, leading to greater smoke and carbon-monoxide exposure than from a single cigarette (hence the greater impact on lung function on a per-smoke basis). However, while most regular cannabis smokers will smoke less than 5 joints per day, most regular cigarette smokers will typically smoke over 15 cigarettes per day. So the overall smoke exposure is typically much greater with tobacco than with cannabis and this is a likely reason for the greater occurrence of tobacco-caused illness.’

The findings can also be attributed to the fact that nicotine has a much shorter half-life than THC, which causes cigarette smokers to smoke more frequently. In addition, there is significant evidence to show that cannabis users typically stop using the drug before they hit middle age, while cigarette smoking is a lifelong habit for many. So under these ‘typical use’ conditions, cigarette smoking is much more harmful than cannabis smoking.

However, Dr Foulds is quick to remind us that, if the effects are compared on a ‘per smoke’ basis – i.e. if cannabis smokers smoked as often and as much as cigarette smokers – then cannabis would be much more harmful than cigarette smoking. This is what is meant by the ‘dose-response’ relationship.

Other Issues

While the study provides a useful comparison, it neglects to consider other factors, such as other ways in which cannabis can be consumed.

Cannabis is available in many different forms – it can be consumed in food, tinctures, or even vaporised. Studies show that these alternative forms of consumption are much less harmful than smoking it in a joint or a ‘cone,’ as they do not involve the combustion of materials.

The American Lung Association says that combustion of any material – whether it be marijuana or tobacco – is harmful and dangerous. The harm associated with smoking joints is therefore not unique to smoking cannabis, as smoke from wood, tobacco, marijuana or any other substance releases carcinogens; whereas the much longer list of adverse health effects associated with cigarette smoking is largely linked to the chemicals and harmful substances contained in cigarettes – including nicotine, butane, hexamine, methanol, ammonia, and acetone.

Cannabis users can therefore reduce the harm caused to their lungs by consuming cannabis in other forms – whether in liquid, food, or vaporised.

Studies suggest that vaporising cannabis reduces adverse effects – one study by the University of California found that ‘there was virtually no exposure to harmful combustion products using the vaporising device,’ while another study by Leiden University revealed that vaporisers were ‘safe and effective cannabinoid delivery systems.’

Based on these findings, it is difficult to understand why cannabis remains illegal in so many places when cigarettes are freely available.

Victoria says that the use of medical marijuana will be legal by 2017 for people with serious medical conditions.

But contrary to some reports and social media posts, marijuana will not be legalised for personal or recreational use.

Following recommendations contained in a report by the Victoria Law Reform Commission, the state will be conducting trials for those suffering from a range of serious medical conditions, including cancer, epilepsy and chronic pain.

The report contains 42 recommendations, including that cannabis growth should be controlled under a strict licensing scheme. The Victorian government has confirmed that growers will be closely monitored and their output tracked and weighed. The marijuana will only be available to those with a prescription from a specialist.

The report states that:

“The opportunity exists for a combined Commonwealth and Victorian initiative to relieve suffering and to improve the quality of life for a vulnerable cohort of people within the community.”

Under the trial, children suffering from severe epilepsy will be the first to get access to medicinal cannabis by 2017. It will then be provided to cancer patients, those with HIV/AIDS, severe pain and nausea.

Victorian Premier Daniel Andrews stated that:

“There are about 450 or those beautiful little people and they’re going to get legally for the first time the medicine that they need to transform their lives, and indeed to save their lives.

The time has come for us to stop finding reasons not to do this.”
Despite the scheme’s limitations, marijuana advocates have welcomed the move as a positive step forward.

Does the Scheme Conflict with Commonwealth Laws?

There are a number of federal laws that regulate the cultivation, manufacture, supply and use of drugs in Australia.

Generally, Commonwealth laws trump State laws – but there are ways around this in the context of drug regulation. For example, Victoria can pass laws making it legal to grow its own cannabis, but would need the Commonwealth to make legal concessions in order to enable importation.

Under the Criminal Code Act 1995 (Cth), all steps involved in making and distributing illicit drugs are criminalised unless authorised by a state or territory. Similar laws are contained in the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), but these are not designed to exclude state and territory laws.

This means that states are allowed to make their own laws about drugs, as long as they do not conflict with our international obligations, such as those contained in the Single Convention on Narcotic Drugs (1961). That Convention says that narcotic drugs, including cannabis, can only be made available for medical and scientific purposes. The obligation is reinforced in the UN Convention of Psychotropic Substances (1971).

The Importance of the Scheme

Dr Ian Freckelton QC, who headed the Victorian review, believes that the scheme will be groundbreaking and innovative. He says that the researchers were “struck” with the emotional and moving stories of people suffering from serious illnesses who experienced relief through the (illegal) use of marijuana.

The scheme means that sufferers will no longer face the prospect of criminal charges and the associated social stigma for using marijuana, and will be able to access the drug freely and easily.

Many feel that more research needs to occur into the effects of cannabis on chronic illness, and its side-effects. To that end, NSW, Victoria and Queensland are scheduled to conduct trials to research the drug’s clinical benefits, and any negative effects.