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Drug Infringement Notices: Decriminalisation?

On the spot fines drug possession

Since September 2018 five people aged between 19 and 23 have died from taking MDMA at New South Wales music festivals. This has sparked significant debate amongst the community about how best to prevent more deaths from occurring. Almost everyone reading this article will agree that we need to do more to prevent the increase in young people dying after consuming illegal drugs – whether it be at music festivals, licensed premises, parties or on the streets.

The New South Wales Government has been in the spot light recently for the proposal to trial infringement notices (fines) rather than criminal charges for those committing the offence of Possess Prohibited Drug. There are reports that these trials will commence on 25 January 2019.

With three Sydney based music festivals scheduled for the Australia Day long weekend, this means that anyone possessing an illegal drug may be issued with a $400 infringement rather than facing criminal proceedings and being required to attend court. The October 2018 NSW Government Report titled, “Keeping People Safe at Music Festivals” first recommended this trial.

Possession of a prohibited drug carries a maximum penalty of up to $2,200 in fines and/or 2 years imprisonment. Prior to the trial, people detected by police were charged with a criminal offence and issued with a court attendance notice. Such a person is required to attend court (or submit a written notice of pleading). If they plead guilty, or are found guilty after hearing, they are sentenced for their matter. Penalties range from a non-conviction dismissal, a conditional release order (with or without criminal conviction), a conviction and fine or more serious penalties including things like community service and in some instances gaol.

If the recommendation is accepted and this trial becomes permanent, police can issue the offender with an on-the-spot fine or infringement notice. The person will not have to attend court and will not face the prospect of a criminal conviction or other penalties such as a good behaviour bond, community service or gaol. The offence will not appear on a routine criminal history search.

There have been reports in the media that the NSW Government is introducing “tougher penalties” or “harsher fines”. A NSW Parliamentary Research Service Paper entitled Drug use at music Festivals published in December 2018 suggests that this “may have a net widening effect as they represent a harsher criminal law response than proceeding to court”. This is simply not the case as the move to an on-the-spot fine will often mean a more lenient outcome for an offender who no longer needs to face a Magistrate, obtain a lawyer, disclose the offence to their employer or family and complete or pay any court ordered penalties.

The “Keeping People Safe at Music Festivals” report quotes BOCSAR data that shows in 2017 there were 11,077 principal offences of possession of illicit drugs. Of those offences:

  1. 6,005 were convicted with a fine imposed;
  2. 2,539 were convicted and placed on a bond without supervision;
  3. 699 were discharged with no conviction recorded; and
  4. 1,834 were convicted and received some other penalty.

While some offenders who are charged attend court and get the benefit of a non-conviction, most of these are discharged by way of a Conditional Release Order. This Order requires them to be of good behaviour and can incorporate other orders such as to attend treatment or refrain from drug use. The Conditional Release Order will appear on some criminal history checks for the duration of the Order. The 6,005 people who were convicted and fined, may well, under the infringement notice proposal, be dealt with merely by way of a fine and no associated criminal record. This is a much better outcome for the offender, but does little to prevent or deter them from possessing drugs.

People who attend court often seek the advice or representation of criminal lawyers. These lawyers often advise them of the risks of drug use and impact of possible convictions. They are advised to get references from their employers, family or other people meaning they must disclose their drug use to other people. In many cases, legal aid, private lawyers, court staff or Magistrates themselves will refer offenders to health services and programs to target drug use or other issues. This intervention can make a person accountable for their actions and reduce the likelihood that a person will reoffend in ways that the on-the-spot fines cannot.

The implementation of on-the-spot fines for offences of possess prohibited drug is a questionable policy if what the NSW Government wishes to do is to reduce the number of people using illegal drugs, especially the number of young people putting themselves at risk. In our experience, the main concern of those who get caught with illegal substances is that they will receive a criminal conviction; if this deterrence is removed by the implementation of an infringement notice system, the government is, in our experience, removing the primary deterrent and in effect decriminalising possession and use of prohibited drugs. It is hard to see how making the taking of illegal drugs less risky, from a punitive stand point, is going to make attending festivals any safer – logically more drugs are more likely to be consumed because no conviction will result, if they get through security.

Written by Trudie Cameron on January 25, 2019

Trudie is an Accredited Specialist in Criminal Law and practices exclusively in criminal and traffic law. Trudie defends clients charged with both state and commonwealth offences and appears on their behalf in Local and District Courts. Trudie has also instructed Counsel in the Supreme Court of New South Wales, New South Wales Court of Criminal Appeal and the High Court. View Trudie's profile

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