Are they all they’re CRACKed up to be?
A lot of positive publicity has been given to NSW Attorney-General Mark Speakman’s recent proposal to issue $400 fines for drug possession; rather than to charge offenders and bring them before the Courts. The spin on this has turned on a discussion regarding the war on drugs; and perhaps a move towards decriminalisation for small quantity possession, but is it all it’s CRACKed up to be?
Not many people realise, but the following discretionary options are already available to NSW Police instead of formal charges and Court:
1. A caution regime for possession of small quantities of cannabis; and
2. A penalty notice regime for small quantities of certain other drugs, including cocaine and MDMA.
As to point 2, section 333 of the Criminal Procedure Act 1986 (NSW) gives Police the discretion, and section 338 confirms that payment of the penalty is not to be taken as an admission of guilt. In other words, a fine can be issued instead of Court, with no criminal record to follow. So why isn’t this used more widely?
Police often issue internal policy documents which dictate their procedures and approaches to various things.
In the case of drug possession and penalty notices; their official policy is that they are only to be used at music festivals. However, the law itself does not limit their use in this way, rather it is a choice they have made. Still, the fact that this penalty is available is often a submission we make at Court in favour of a section 10 application for drug possession, but of course that does not help from a financial perspective once the client has to engage us to appear in Court anyway.
From that perspective, the benefit of the new proposal could be more widespread use of penalty notices instead of Court. However, one unknown at present is how the fines will be treated in terms of appearing on a criminal record; to whom that information might be available to. That will only be determined once a Bill is passed in Parliament.
One aspect of the proposal that would add to the existing penalty notice regime in a potentially negative way is the condition for the offender to undergo treatment.
For the average addict, this may be difficult or impossible; and impose a condition that will surely see them in Court for something much more serious than the original small quantity drug possession itself. It is unnecessary under the current regime, so this adds a further level of compliance and risk. Having said that, the condition may end up assisting the drug offenders; that depends on the fine print and whether they have the physical, mental and financial capacity to comply. From that perspective though, regardless, the proposal is actually adding to regulations and conditions, rather than moving towards deregulation.
It seems a smarter alternative may be to amend section 333 of the Act and instead make penalty notices mandatory up to three times instead.
After the third drug possession offence, there could be an automatic good behaviour bond imposed by the Court, without the need for a physical appearance and without a conviction being recorded; with a condition that the offender undergo a Court-endorsed treatment program that already exists, such as MERIT or Smart Recovery. This would seem to be a better way to manage the Court’s resources; and provide certainty and a higher probability of rehabilitation.
We will keep an eye on this and keep you posted. In the meantime, contact us if you or someone you know is facing trouble for drug supply or drug possession.
At Green & Associates, we are experts in applying for no convictions and have an excellent success rate in achieving this for our clients. Regardless of the charge, we are ready to be in your corner and assist you during this uncertain time. If you or someone you know needs assistance with a defamation case, contact our office or book an appointment today.