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Legislative Options for Cannabis - Australian Government




Offences relating to alcohol or drug use in New South Wales are covered by the Drug Misuse and Trafficking Act 1985 (NSW). This Act distinguishes between cannabis and other drugs only in the case of commercial trafficking. Possession and administration of cannabis are prosecuted summarily and offenders are liable to a penalty of $2,000 and/or two years' imprisonment. Cultivation, manufacture and production, and supply are prosecuted on indictment, an offender being liable to a fine of $2,000 and/or two years imprisonment if there are less than five plants or less than a quantity of 25g. New South Wales was the first State in Australia to introduce a drug diversion program.

Its current program, the Drug and Alcohol Court Assessment Programme (DACAP) is a post-conviction, pre-sentence program where offenders on drug-related charges (such as possession of an illicit substance) or drug-involved crime (such as property crime to finance drug use) are bailed/remanded to attend a treatment agency and undergo a comprehensive assessment which forms the basis of a pre-sentence report for the magistrate, containing recommendations for sentencing, including treatment options ([16]Desland & Batey 1990, p796).

Successful completion of the treatment program, the length of which is determined by a health worker, finalises the matter ([17]Walters & Coventry 1993). A further objective is to 'provide drug offenders with a comprehensive assessment that may encourage them to consider improving their health and social functioning' ([18]Schlosser 1984, pxi).

DACAP further attempts through these assessments to match the individual's drug-related problems to the most appropriate range of therapeutic interventions within a legal/health framework (Schlosser 1984).'... the diversion from the Criminal Justice System to the health care system provides to the offender in many cases, the initial insight and confrontation that criminal activities are directly related to their health. Often this insight initiates motivation to address the problems of substance abuse' ([19]MSJ Keys Young, 1992, p92).

DACAP statistics between 1990 and 1992 indicate that, while heroin was the main drug of concern (after alcohol) in about one case in five, both in 1990-91 and 1991-92, cannabis was the next ranking drug ([20]MSJ Keys Young, 1992, p96).14 An interview with one of DACAP's clients who had been arrested for possession and supply of a large amount of cannabis revealed that, although he knew that he had 'a big marijuana problem', he had never been prepared to do anything about it and that DACAP provided the opportunity and a reason to 'address the issue'. The magistrate placed this client under supervision, fined him, imposed a sentence of periodic detention, with 20 hours at an Attendance Centre and the requirement to undertake a series of courses on issues such as personal development, money management, drug and alcohol information and education. The client fulfilled these requirements ([21]MSJ Keys Young, 1992, p118).

MSJ Keys Young's recent evaluation of DACAP included the observations that:

  • Magistrates generally agreed that a DACAP report might be considered appropriate in cases involving a relatively serious and/or repeated offence, where a custodial sentence was a realistic possibility (some used it even where a custodial sentence was unlikely), and where it appeared that drug/alcohol dependency might be a significant factor (1992, p113).
  • It was very desirable to use the pre-sentence 'crisis' period to get the dependency problem acknowledged and, if possible, to start treatment, as if left until after sentence, the chances of success were much less (1992, p105); sometimes it takes a long time for a drug user to recognise dependency (e.g. in the case of cannabis) and an intervention such as that of DACAP can be very beneficial in confronting this.
  • Some magistrates observed that they did not see many people who had been through the DACAP process coming before the court for repeat offences. Important issues were availability of places in treatment and skilled counsellors with broad views of dependency. Regarding the issue of coercion, several evaluations of DACAP have 'tentatively concluded' that the legal coercion into treatment as evidenced in the DACAP program was effective in acting as an early intervention into drug use, generating a younger client less involved with drugs, who is more amenable to an abstinent outcome (Desland & Batey 1988; [22]Schlosser 1984; [23]Bush & Scagliotti 1983; [24]Williams 1981; all cited in Desland & Batey 1988, p51). This is consistent with other studies of court-ordered assessment/treatment for substance use ([25]Salmon & Salmon 1983, cited in Desland & Batey 1987, p51).


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