Does Minor Drug Possession Deserve a Criminal Record?

An article featured in yesterday’s Daily Telegraph describes how Sydney courts are clogged with first-time drug offenders – with 53 people appearing at Burwood Local Court earlier this week charged with offences arising from last year’s Stereosonic Music Festival.

Hundreds more will front the Downing Centre Local Court this month after being found in possession of drugs at the Field Day Festival on New Year’s Day.

Local Court magistrates see first-time drug offenders in court almost every day – and  the government’s hard fought ‘war on drugs’ is going nowhere but backwards.

Magistrates sentencing offenders for drug possession are generally minded to deal with these cases without recording a criminal conviction, and statistics show that around 80% of those aged between 18 and 20 who plead guilty to possessing MDMA (‘ecstacy’) receive a section 10 dismissal or conditional release order – which means guilty but no criminal record.

But some say non conviction orders are being handed out far too frequently, arguing that the only way to teach young drug users a lesson is to record a criminal conviction against their names.

Young, Wild and Free

Conservative commentators believe too many young people are putting their lives in danger by consuming drugs, thinking that they can will get a slap on the wrist if caught.

They argue that handing out non conviction orders fails to send a message that drug use is dangerous – encouraging young people to take drugs despite the risks.

A number of local court magistrates have started taking drug possession cases more seriously following a number of drug-related deaths at music festivals, including that of pharmacist Sylvia Choi at last year’s Stereosonic and 19-year-old Georgina Bartter at Harbourlife in 2014.

But is this really the best approach?

Why This Approach is Flawed

Those who work within the criminal justice system – and who have extensive dealing with those who use drugs – know very well that convicting first-time drug users does not deter others from taking drugs, and can even be counter-productive.

For one, it seems senseless to ruin a young person’s life over a single – albeit serious – mistake. A criminal conviction can have a devastating impact on an individual’s career before it has even truly begun. Many young people who come before the courts are still in the midst of a university degree and have worked very hard to get where they are.

Jeopardising a person’s future because of one mistake does not discourage reoffending – rather, convicting drug users could have the opposite effect by fostering the mentality that there is ‘nothing more to lose’ – and in turn, encouraging future drug use.

And in the vast majority of cases, individuals who are afforded a second chance by being granted a non conviction order learn their lesson and do not reoffend.

Secondly, many believe that treating drug use as a criminal issue, rather than a health issue, is the wrong approach. As discussed in previous blogs, European countries including Portugal and Ireland have recently decriminalised drug possession in a bid to encourage individuals to seek medical help, rather than penalising, stigmatising and alienating them through criminal prosecution. These countries have already seen the benefits of this approach, with more and more people seeking treatment – which is a more effective deterrent than a criminal conviction.

Thirdly, the logic that all drug use warrants a conviction fails to consider the fact that each case is different – and that magistrates are expected to exercise their discretion accordingly. An 18-year-old found in possession of a couple of capsules of MDMA, who pleads guilty to the offence and has no prior record should obviously be treated more leniently than a regular drug user found with 20 capsules who has a prior criminal record.

Finally, as mentioned in previous blogs, cannabis is treated very differently under the law to other drugs – with people found in possession of 15 grams of cannabis or less being eligible for a cannabis caution instead of being charged with drug possession. This is despite the High Court case of Adams v The Queen which says that all drugs are to be treated equally in the eyes of the law. Because of this inconsistency, a good criminal lawyer will make submissions to the court that, in the context of Adams, it would be unfair and inconsistent to convict a person found in possession of a small quantity of drugs other than cannabis.

Short of decriminalising or even legalising drug possession altogether, the better approach is to exercise a degree of leniency when it comes to dealing with young people who are found in possession of small quantities of illegal drugs for the first time.