The Drug Misuse and Trafficking Act 1985 (NSW) (DTMA) governs all offences relating to prohibited drugs. The Act is primarily divided into two types of offences; summary and indictable offences.
Summary Offences:
Division 1 of the Act deals with summary offences. Possession of prohibited drugs is one of the offences within division 1, articulated in s 10 of the DMTA. Possession has two actus reus (AR) and two mens rea (MR) elements which must be satisfied to prosecute the offence.
Actus Reus Elements:
Physical Control and the Item was a Prohibited Drug:
The degree of physical control required to satisfy the AR element is articulated in the case of Filippetti. The case establishes that in order to prove exclusive physical control, the prosecution needs to eliminate the “possibility that the drugs were in the possession of another.” In addition, the case of Dib establishes that the accused must have the drug “in his manual possession or in a place to which he…may go without physical bar”, to constitute as an offence. Hence, these two cases establish the basis for the physical control required, articulating that the accused must have had manual control of the item, without a physical restriction. The second AR element is that the item was a prohibited drug. To determine this, one must look to the list in schedule 1 of the Act. In reference to cannabis, it is listed within this schedule, and is therefore a prohibited drug.
Mens Rea Elements:
Intent to Control the Item and Intent to Control the Prohibited Drug:
As per He Kaw Teh, the prosecution must prove that the accused had intent to control the item. This relates to the likelihood of them knowing that there was a substance in their possession, or as stated in the case, that they knew of the “existence and nature, or of the likely existence and likely nature, of the narcotic goods in question”. Intent to control a prohibited drug is highlighted in the case of Saad, which states that for MR to be satisfied, the accused must have known that the substance was a drug or was aware of the likelihood of the substance being a drug.
Other Summary offences:
Other summary offences include the use of prohibited drugs, administration of prohibited drugs to others and permitting another to administer prohibited drugs. These offences do apply to cannabis, as stated in schedule 1 of the Drug Misuse and Trafficking Act (1985).
Indictable offences:
Indictable offences relate to the commercial supply of drugs, contained in division 2 of the Drug Misuse Trafficking Act (1985). Key offences under the Act include s 23, 25 and 29. However, in order to prove such offences, one must prove that drug supply occurred. Proof of supply can transpire in one of three ways; ordinary supply, extended meaning of supply and deemed supply.
Deemed Supply:
Deemed supply suggests that if the accused had possession of a trafficable quantity of a drug, they will “be deemed to have the prohibited drug in his or her possession for supply”. In order to prosecute for the offence, certain AR elements need to be satisfied. Firstly, there must be a trafficable quantity, and possession must be proven. The traffickable quantity for cannabis, in all its forms can be found in column 1 of schedule 1 of the Drug Misuse and Trafficking Act (1985). The other element to be noted is that of defence; there mustn’t be any defence which proves that the cannabis was for personal use and not supply, beyond a reasonable doubt, as per s 29(a). In addition, s 29 (b) introduces the defence which relates to s 29 not applying if the cannabis was obtained by prescription.
Ordinary Supply and Extended Meaning of Supply:
Ordinary supply interprets supply in its regular meaning of giving something to someone. However, in the case of R v Carey it articulates that “supply does not include temporary possession of a prohibited drug with the intention of returning it to the owner of the drug.” Hence, when applying ordinary supply, such an exemption must be considered. The extended meaning of supply is defined in s 3 of the DMTA. This definition expands the meaning to all actions which would be deemed as ‘supply’.
Deemed drugs:
Deemed drugs is a provision enlisted s 40, enforcing the definition of supply. This provision prevents an accused from escaping liability when they have supplied a substance which isn’t a prohibited drug, but presented it as if it was. Hence, for the purpose of the Act, the item is deemed to be a prohibited drug.
Penalties:
The penalties vary for both summary and indictable offences. For specifically the cannabis plant or leaf, the penalty is a fine of 2000 penalty units, or imprisonment for 10 years, or both.
Major policy issues associated with the criminalisation of recreational cannabis
Monetary costs:
Monetary cost relates to the amount spent on cannabis drug law enforcement. It was estimated that in 1991-1992, $329m was spent on cannabis drug law enforcement in Australia. This figure includes the costs of police officers, arrests, courts and prisons. Studies show that during the period from 2002-2007, 78% of drug seizures by police officers and 83% of drug-related arrests were solely for cannabis. Hence, these statistics alone describe where the funds dedicated to cannabis drug law enforcement are going, due to criminalisation.
Black market increases social costs:
Cannabis and violence link hand in hand in Australia. It was stated that “76% of cannabis users contribute to domestic and/or family violence”, due to the reaction of withdrawing from the drug, or due to attempting to obtain money from family. In addition, in 2008, there was a 30% increase, from 23,826 in 2002 to 31,449 in 2007, in the number of cannabis users requiring hospital treatment, for psychosis in particular. Hence, this presents a large number of people within the community, who are mentally impacted by the intake of this drug. This is where the link between mental health and violence also occurs, with cannabis users lashing out on the people around them prior to receiving the required medical treatment. It was noted by critics that the reasoning for this high number is due to the criminalisation of the drug, and hence its fabrication on the black market. There are many ‘health risks’ with cannabis on the black market, due to the quality of products used to produce the drug, and lack of quality control. The D-9-tetrahydrocannabinol (THC) content in cannabis varies, allowing users to be impacted by the drug, without any restrictions. Hence, if cannabis was decriminalised, and produced in a controlled environment, this would control the use of such chemicals, and ultimately certain health impacts on the consumer and society. Ultimately, this links to the saving of funds on health care, and rehabilitation in circumstances such as overdose, or poisoning.
Legalisation:
Benefits of legalisation:
The black-market price of cannabis is a much more expensive being a prohibited drug than it would be if it was sold in a legal market. This is due to one needing to compensate for the risks associated with it being supplied and sold on the black market, such as possibility of arrest, fine or imprisonment. Critics argue that the criminalisation of cannabis “generates large profits that can be used to corrupt law enforcement officials”. Hence, the legalisation of cannabis would ultimately lead to lesser profits for these suppliers, and in turn, there would be less funds available for such corruption. The Greens also believe in this theory, stating that their plan “to create a legal market for cannabis production and sale will reduce risks, bust the business model of criminal dealers and syndicates and protect young people from unfair criminal prosecutions." This ideology ultimately envisions that there will be less criminal behaviour, as well as better quality cannabis upon legalisation.
An article submitted by the Greens depicts that “legalising marijuana for recreational use would boost the budget by up to $1.8 billion a year”. The policy also introduced the concept of 25% tax on each sale, similar to that of tobacco, with a “10 per cent Goods and Services Tax and a reduction in law enforcement would net $3.5 billion by 2020-21”. The policy introduced by the Greens also articulates that taxation on tourists would add up to "10 per cent of total sales, earning $130 million in revenue by 2020.” Hence, in accordance to this report, the legalisation of cannabis would create a greater revenue for the government through taxation, which in hand increases funds that could be used on societal needs, such as public education and health care. Hence, there would be less money in the black market itself, and more into the national economy.
Risks of legalisation:
There are many risks which have been noted in the discussion of legalising cannabis. These include the higher costs of healthcare and deterioration to one’s health. Studies show that 10% of cannabis users become dependent on the drug, as well as the drug doubling the risk of psychotic symptoms and schizophrenia. Legalising the drug could ultimately mean that the drug is more available to users, and hence can present a chance of increasing such mental disorders. Such a concern could be treated in the same way that tobacco and alcohol are currently in Australia, by placing age restrictions on the drug to regulate who it is available to. On the contrary, it is believed that there are many benefits of medical marijuana. This is the current case, as Australia has “implemented legislative and policy change to allow the cultivation, manufacture, prescribing and dispensing of medicinal cannabis products for patients”. Therefore, this uses prescription as a regulation, allowing some to benefit from the drug.
Decriminalisation:
Benefits and Risks of Decriminalisation:
Many jurisdictions globally have decriminalised cannabis by replacing criminal penalties with civil penalties. To understand the benefits of decriminalisation, one must look to these other jurisdictions. Since decriminalisation in January 1975 to June 1976, the state of California, USA, has saved $12.6m, on police, court and prison. It was also noted that due decriminalisation, there has been minimal arrests for offences involving cannabis. This isn’t just a monetary advantage, but rather also assists in employment, due to the decrease in criminal records.
On the contrary, some critics argue that decriminalisation leads to an increase in drug use, not only with cannabis, but also with other illicit drugs. In 2001, Portugal decriminalised the use and possession of illicit drugs. Since decriminalisation, the nation has “demonstrated reductions in the burden on the criminal justice system, in problematic drug use, drug-related HIV and AIDS, drug-related deaths, and lower social costs of responding to drugs.” In 1999, Portugal had the highest rate of HIV due to drug injecting, in the European Union. However, post decriminalisation, in 2009, HIV within drug users has dropped 13.4% per million cases. Hence, this example ultimately overturns such ideology, proving that the decriminalisation has actually assisted in reducing drug-related deaths and diseases.
Subsequent to decriminalisation, Portugal enlisted regulations in order to control drug use within the nation. The age restriction of 18 is applied, just as in many other countries such as Uruguay. There are different penalties which apply to different circumstances. For example, those who have serious drug addictions are targeted with rehabilitation or community service rather than heavy fines or imprisonment. Smaller quantities of drugs are dealt with fines. However, offences such as drug trafficking, growing and dealing still have criminal penalties, although since decriminalisation, it was reported in 2009, that such offences have decreased by 43%. Therefore, there are still risks present with such offences still being committed, however the decriminalisation has decreased this, benefitting the nation has a whole.
Recommendation:
In order to suggest a recommendation, one must weigh out the benefits and risks of decriminalisation, by examining the results in other jurisdictions which have applied this legal framework. Cannabis should be decriminalised in NSW; however, regulations must be applied in order to control its uses. Age and quantity restrictions are two key regulations which must be implemented to control usage. The concept of an age restriction is the same of that of tobacco and alcohol in Australia, which are both considered drugs. Hence, placing this restriction would allow for the protection of children from such substances, whilst allowing adults to freely make choices. It also enables the government to utilise taxation on cannabis as they currently do with those other goods. A quantity restriction should also be applied, just as in Portugal, in order to regulate the amount of cannabis used by each individual. This ultimately attempts at preventing issues such as overdose, and dependence on cannabis.