Should Police Give Cautions for Small Drug Possession?

Each year, thousands of people come before courts all over NSW for a range of drug offences. Drug possession is one of the most common offences across the state, second only to drink driving.

BOCSAR statistics reveal that last year, over 41,000 people were found guilty of drug possession in NSW alone.

Particularly at this time of year, when several music events such as Harbourlife and Stereosonic are being held, thousands of young people are sent to court for minor drug offences, many of whom have never previously had contact with the criminal justice system, and will never again.

These cases are clogging up the court system, and it seems that the only ones benefiting are criminal defence lawyers.

That being so, it is worth considering whether police and community resources are being wasted by sending drug users to court.

The Cannabis Cautioning Scheme:

The Cannabis Cautioning Scheme allows police to exercise discretion when they find a person with a small amount of cannabis (15 grams or less). The Scheme does not apply to people who are found to be manufacturing or supplying cannabis.

Police can choose to issue a ‘caution’ instead of a Court Attendance Notice, meaning that the person will not have to front court and go through the criminal justice system. It also means that police will not need to prepare court paperwork, or prepare statements and attend court if the person pleads not guilty.

Only two cautions can be given to each person, and he or she cannot be cautioned if they have prior convictions for drug offences, or violent or sexual offences.

The Scheme allows police an alternative to deal with drug users, recognising that simply arresting and bringing people before the courts can be time-consuming, and even counter-productive.

Penalties for Drug Possession

Drug possession carries a maximum penalty of two years imprisonment and/or a $2,200 fine under section 10 of the Drug Misuse and Trafficking Act 1985 NSW.

While hardly anyone goes to prison simply for possessing drugs, all convictions carry a criminal record, which can have serious and far-reaching consequences for employment, travel and the stigma attached to them.

In reality, however, many people with no prior record will receive a ‘section 10 dismissal or conditional release order’, which means no prison, no fine and no criminal record.

Ineffectiveness of Court Proceedings

Given the fact that a large proportion of those caught with drugs avoid a criminal record – and that those who receive convictions can become stigmatised, lose their jobs and steer further towards the wrong path – it may be time to re-evaluate how the criminal justice system deals with first-time, minor drug offenders.

If those who are guilty are most often given a second chance, and the legal system has to expend valuable time and resources on court proceedings, it is arguably an inefficient way to deal with those caught in possession of drugs.

Benefits of the Scheme

The Cannabis Cautioning Scheme has been in place since 2000, following recommendations by the NSW Drug Summit. It has proved effective in dealing with those caught using drugs, with most of those given a caution not reoffending.

Treatment is built into the Scheme, with those receiving a second caution required to participate in an Alcohol and Drug Information Service to receive help to overcome their drug use.

The Scheme has been effective at diverting people from the courts, and allowing for better allocation of taxpayer money. One evaluation of the Scheme in 2004 noted the positive signs, and in 2011 the Scheme was deemed a success in all of its intended objectives.

For instance, the 2011 audit found that those who were cautioned were less likely to end up in court compared to those who were convicted. In addition, the Scheme was found to have saved the taxpayers $20 million, and avoided thousands of unnecessary court cases.

Given the Scheme’s success, there is a strong argument that it should extend to those in possession of small amounts of other prohibited drugs as well.

Ugur Nedim About Ugur Nedim
Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Drug Defence Lawyers.

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