Western Australia

WA cannabis cautioning scheme

In March 2000 the cannabis cautioning mandatory education system (CCMES), was introduced as a statewide scheme in Western Australia. The formal cautioning scheme was preceded by a 12 month pilot in the Mirrabooka Police District and the Bunbury Sub District from October 1998 until September 1999. The purpose of the pilot was to trial a more effective way of dealing with people caught in the criminal justice system for first time cannabis offences. The objectives of the pilot were:

• to improve knowledge and attitudes regarding marijuana use by offenders; and
• to achieve viable police procedures including a streamlined process and effective interaction with offenders.

The CCMES enables police to issue a formal caution for first time adult offenders in possession or use of up to 25 grams of cannabis. The caution mandates attendance at an educational intervention in lieu of prosecution. There is not a legislative basis for this scheme, rather it is based on police discretion. Where a caution is issued the individual is required to attend a mandatory education session within two weeks of receiving the caution. Failure to attend a session results in a summons being issued for the offence with the matter being dealt with by a court of petty sessions.

There is a separate scheme, which is part of the national approach to diversion of drug offenders, which is targeted at repeat cannabis offenders. In this case the courts are able to refer a repeat offenderto a multi session education and treatment program consisting of three sessions in a group format. The program addresses key issues such as motivation, relapse and goal setting. After the offender’s participation in the program the courts will consider a sentence in the light of the person’s participation.

There have been a total of 1,678 cautions to both the pilot and the fully established CCMES up to 5 February 2002. Overall a total of 208 (12.5%) individuals have failed to attend the mandated education session.

A breakdown of the weight of cannabis seized indicates that the majority of cautions have involved people with relatively small quantities of cannabis, as follows:

• 1,225 (73%) cautions involved weights of less than 5 grams;
• 134 (8%) cautions involved weights of between 5 and 10 grams; and
• 157 (9%) cautions involved weights over 10 grams.

Neuer Stand (29.03.2004): Im März 2004 trat in Westaustralien ein neues Gesetz in Kraft, wonach der Besitz von bis zu 30g und der Anbau von bis zu zwei Pflanzen (ausser hydroponischer Anbau) nur als Ordnungswidrigkeit verfolgt werden. Siehe dazu: http://www.dao.health.wa.gov.au/index.cfm?section=pubs&page=cannabis

South Australia

The legislation did not initially specify the actual number of plants that were deemed to be cultivated for personal use and thus an expiable offence, the number of plants being a “small number for non commercial purposes”. The legislation was changed in 1990 to define an expiable offence as being cultivation of up to 10 plants.

In 1999 the limit of plants was reduced by regulation to three in response to concerns that the shift to hydroponic cultivation had increased plant yields and that commercial syndication had become involved. However, on 12 July 2000 by resolution of the Legislative Council, this regulation was disallowed and the limit returned to the former limit of 10 plants.

Subsequently in August 2000 the limit was again reduced by regulation to a maximum of three plants for the expiable offence of cultivation of cannabis.

In November 2001 an amendment to the regulations decreased the limit to one plant. It is to be noted that a Bill to amend the Controlled Substances Act 1984 was introduced in the South Australian Parliament on 30 October 2001.

If this had been passed it would have had the effect of treating the cultivation of cannabis plants as an expiable offence, depending on the number of plants prescribed by the regulations, so long as these plants were not hydroponically grown. The Bill proposed an amendment to Section 45A of the Act, by defining a ‘simple cannabis offence’ as not being ‘artificially enhanced cultivation’, by inserting the following definition. Artificially enhanced cultivation means –

• cultivation in a solution comprised wholly or principally of water enriched with nutrients; or
• cultivation involving the application of an artificial source of light or heat.

Fees for the expiation of simple cannabis offences vary according to the seriousness of the offence as follows.

Possession of cannabis
where the amount is less than 25 grams ($50 penalty) where the amount is 25 grams or more but less than 100 grams ($150 penalty)

Possession of cannabis resin
where the amount is less than 5 grams ($50 penalty) where the amount is 5 grams or more but less than 20 grams ($150)

Smoking cannabis
Smoking or consumption of cannabis or cannabis resin ($50 penalty) Possession of smoking paraphernalia ($50 penalty)

Cultivation
Cultivation of 1 cannabis plant ($150 penalty).

Trends
Recent studies of the expiation scheme have noted that there was a marked increase in the number of CENs issued from the inception of the scheme in 1987, with just over 18,000 CENs issued in the 1996/1997 year. The expiation rate stabilised at around 45% until 1997 after which there have been smaller increases in the expiation rate believed to be due to the introduction of alternative payment options in 1996 for expiable offences (eg instalment payments and community service).

Drug offences in South Australia increased from 1988 (2,619 offences) to 4,708 offences in 1994, then has remained relatively static up to the end of 2000, with about 4,500 drug offences per year. From 1988 to 1992 cannabis offences made up about 80% of all drug offences in South Australia. Since 1992 there has been a steady decline in the proportion of offences involving cannabis compared to other types of illicit drugs and by the year 2000 made up 62.6% of all offences.

Over the period from 1991/1992 to 1995/1996 almost all CENs involved single offences. By the mid 1990s more than 17,000 CENs were being issued in South Australia. Since a peak of 17,170 in 1994/1995 there has been a gradual decrease in the number of notices issued each year dropping to 8,651 in 1999/2000.

Cautioning and diversion
Juveniles cannot be dealt with under the CEN but are subject to formal and informal cautioning.

Australian Capital Territory

SCONs are issued to adults or juveniles and have the option of paying the fine within a prescribed time or later appearing in court, with the possibility of a conviction (though a conviction is not inevitable). Fees for the expiation of simple cannabis offences vary according to the seriousness of the offence as follows.

Possession of cannabis
Where the amount is not more than 25 grams ($100 penalty)

Cultivation
Cultivation of up to five plants ($100 penalty)

Use
It is an expiable offence to use (ie self administer) cannabis ($100 penalty)

Trends
Data from 1994 (the first full year of operation of the ACT scheme) to 2001 shows that a total of 1,795 SCONs were issued over this eight year period, with an overall mean expiation rate of 51.6%. The data indicates the highest expiation rate occurred between 1994 and 1996 (reaching a rate of just over two thirds of all SCONs being expiated in 1995).

The expiation rate dropped in 1998 and 1999, with just over four out of 10 SCONs being expiated.

There has been a trend of an upward trend in the annual, with just under half of SCONs being expiated in 2001.

Cautioning and diversion
The ACT has developed an early intervention and diversion program based on police discretion. Participants in this program must have committed an offence under the Drugs of Dependence Act 1989 (ie possession of an illicit drug or illicit possession of pharmaceutical drug). Diversion will not be available where a violent crime has been committed.

The program retains the use of SCONs. From December 2001 police will have the option of issuing a SCON, which involves payment of a fine or diversion of the offender to an education program. The option to divert to education, in preference to payment of a fine will be undertaken in the same manner in which police divert other offenders in possession of small quantities of drugs.

Expiation of the drug diversion caution notice will occur after attendance at one assessment intervention and one education or treatment intervention.

Northern Territory

If the fine is not paid within a specified time, after a reminder, the offender is taken into custody or the amount can be recovered by a warrant of distress. Offenders have the option of contesting their infringement in court, with the consequent possibility of a criminal conviction.

The Misuse of Drugs Act permits a $200 infringement to be issued where a person (an adult) is apprehended not more than 2 cannabis plants or is in possession with a specified amount. Trends

Due to unavailability of additional information it is not possible to discuss trends in the Northern Territory scheme.

Victoria

Cultivation of less than 250 grams of cannabis (if not for trafficking) carries a maximum penalty of $2,000 and/or one year imprisonment. 250 grams or more, or 10 plants, is counted as a traffickable quantity, and possession of those amounts is taken as evidence of trafficking.

Cautioning and diversion
Victoria has statutory procedures for dealing with first and second time possession/use cannabis offenders. A system of adjourned bonds has applied for some time in Victoria for minor first time (possession and use) drug offences. First offenders are given a bond, and no conviction is recorded if the bond conditions are complied with. In 1993, adjourned bonds were applied to 40 per cent of all minor cannabis charges in Victorian magistrate’s courts.

Victoria also has a police diversion scheme, the cannabis cautioning program (CCP), which has operated since 1998 (although it is not legislatively based). First or second time offenders (over 17 years of age) who have had little or no previous contact with the criminal justice system can be issued a caution notice instead of having the offence proceeded with through the courts (for possession/use of up to 50 grams). The caution notice includes information about the harms of cannabis use. Whether an offender is offered a caution is at the discretion of the police officer concerned.

New South Wales

Cautioning and diversion
Following a recommendation of the Drug Summit which was held in May 1999 the cannabis cautioning scheme (CCS) began statewide in April 2000 for a trial period of 12 months. The CCS covered offences of use and possession of dried cannabis leaf stalks, seeds, heads, and equipment for administration. It does not include living plants or derived products such as hash and hash oil. Police guidelines apply to cautioning adults detected using or in possession of not more than 15 grams of dried cannabis and/or in possession of equipment for administration. When detected, police are encouraged to exercise their discretion to issue the person with a caution, providing the cautioning criteria are met. Offenders are issued with a caution notice along with legal and health information and a number to call for confidential treatment and referral.

Police still retain their discretion to charge an offender or issue a caution. A caution cannot be issued if there are prior convictions under the Drug Misuse and Trafficking Act 1985 or a violent or sexual assault offence. No person can be issued with more than two cautions. The offender must admit to the offence and must only possess the cannabis for personal use (15 grams or less).

This scheme does not have any legislative basis, but is dealt with by the New South Wales Police Service policy and procedures on the ‘Cannabis Cautioning Scheme’.

Queensland

It is an offence in Queensland to possess up to 500 grams of cannabis, or where plants are concerned, up to 100 plants (or up to 500 grams equivalent in weight). If the offence is dealt with as an indictment, the maximum penalty is 15 years imprisonment and/or $300,000 fine. If dealt with summarily, the maximum penalty is two years imprisonment and/or $6,000 fine. There is no distinction under Queensland law between small amounts (for personal use) and larger quantities up to 500 grams (which most other jurisdictions would regard as a traffickable quantity). Possession of drug paraphernalia is also an offence. Currently, under the Juvenile Justice Act, those under 17 years of age can receive a caution for possession of small amounts of illicit drugs including cannabis.

Cautioning and diversion
The drug diversion assessment program (DDAP) commenced in June 2001. The Police Powers and Responsibility Act 2000 requires officers to offer a drug assessment program as an alternative to prosecution for persons found in possession of not more than 50 grams of cannabis sativa or a thing for use, or that the person has used, for smoking cannabis sativa, unless such possession involves the supply of or trafficking in cannabis sativa.

The aim of a drug diversion assessment program is to reduce the number of offenders appearing before courts for minor drug offences, provide incentives for these offenders to curb drug use and increase the number of offenders accessing drug education and treatment programs.

Tasmania

• first time adult offenders for possession or use of any drug including cannabis (up to 50 grams) are issued a cautionary notice by police as well as a pamphlet containing educational material;
• second time adult offenders are referred to a one hour counselling/treatment intervention; and
• third time offenders are diverted to a more comprehensive assessment, with referral to counselling, detoxification, or rehabilitation.