An introduction to the caution scheme for minor drug offences

by Findlaw

A number of jurisdictions have alternative schemes for dealing with people carrying a small amount of drugs. The aim of such initiatives is to divert individuals away from the criminal justice system, while also encouraging the person to seek rehabilitation.

How does the scheme operate?

Using New South Wales and Victoria as our examples, police officers in both states have the discretion to caution a person carrying a small amount of drugs, rather than charging the individual. In Victoria, the cautioning scheme is applicable for first-time users of cannabis or heroin.

In New South Wales, the scheme is generally applied to minor cannabis offences. When looking at how the scheme is applied to adults, anyone over the age of 18 who is in possession of up to 15 grams of cannabis, is using the drug, or is in possession of a smoking implement such as a pipe or bong, the police can use their cautioning discretion. However, it should be noted that the discretion is for the most part not applicable for cultivation offences.

For minors in New South Wales, the discretion to caution is similarly applied, however, under the provisions of the Drug Offences Act 1997 (NSW), other offences that can be dealt with for minors can include:

  • cultivation of no more than five cannabis plants;
  • possession of no more than one gram of heroin, cocaine or amphetamines, 0.0008 grams of LSD, and 0.25 grams of ecstasy;
  • use of a prohibited drug.

Juveniles who are cautioned in New South Wales can have three cautions issued, and the caution can be administered at a later date either at a police station, or another venue. Additionally, either a police officer or another person (such as a drug and alcohol worker), can issue the caution.

In Victoria, police officers formally caution an individual at the police station, with the person caution required to attend counselling at a drug treatment facility. Failure to do so may result in charges being laid.

What are the guidelines in relation to the scheme?

Using the New South Wales scheme as our example, in order for a person to qualify for a caution, they must first admit to the offence, and some of the other qualifying guidelines can also include:

  • the person has no prior criminal history relating to drugs, sexual assault, or offences involving violence;
  • the person has not received more than two previous cautions;
  • the person must satisfy the police officer that the drug is for personal use.

It should be emphasised that the power to caution is discretionary, and a police officer may still prosecute a person.

Findlaw

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