Your rights for the 2012 party season
- Jason Marshall
- Thursday, 16 February 2012
As the party season heats up, a police crackdown on drugs is almost inevitable, but knowing exactly where you stand will allow you to be smart about your partying.
Possession of small quantities of prohibited drugs is treated as a summary offence and dealt with at the local court; the maximum penalties are $5,500 or two years imprisonment.
Police have an enormous amount of discretion but you may only be charged with a summary offence if caught in possession of a ‘small quantity’; that is, up to 1gram of Speed, Coke, Heroin, or Crystal Meth; 2.5grams of Ketamine; four tabs of LSD; four ecstasy pills or 0.8grams of MDMA; and 30 grams of cannabis leaf.
The purity of the substance does not count; if you only have 10 per cent heroin and 90 per cent glucose, the entirety of the substance is considered to be heroin.
The Cannabis Cautioning Scheme gives police the discretion to caution you formally for possession of 15 grams of pot or less instead of instigating criminal charges and court proceedings. It applies only to adults who have no prior convictions and you can only be cautioned twice.
In 2010, half of all people who were charged with possessing a small quantity of prohibited drugs escaped conviction.
According to the NSW Bureau of Crime Statistics and Research, in 2010, 9,990 people were charged with possession. 6,576 were found guilty and of those 3,900 were fined, 1,145 were put on a good behaviour bond with no conviction, and 584 had no conviction recorded. Only 71 were sentenced to imprisonment. Others received a range of minor punishments.
‘Supply’ is an indictable offence, and is very broadly defined. There is no minimum quantity for a charge of supply. Passing your friend a joint, giving away drugs, or just agreeing to supply them, even if you have no hope or intention of doing so, are all considered supply.
Also, the law allows police to automatically assume that if you possess large enough quantities of any illegal substance, you intend to supply others with it. For it to be ‘deemed supply’, you must have in your possession at least a ‘trafficable quantity’ of a particular drug; however, there are many situations where people have proven that it is only for their own use.
David Porter from the Redfern Legal Centre said even if you haven’t broken any drug laws, the police may try to charge you with hindering police, resisting arrest and assaulting police.
NSW Police can search you if they believe you are carrying drugs, weapons or anything that may have been used illegally.
They routinely ask leading questions in order to establish reasonable suspicion. Police may walk up to someone holding a mobile phone and ask them if it is stolen.
“It can be very easy for police to say things to indicate such belief,” Mr Porter said.
Despite an 80 per cent failure rate, the most common approach at parties, pubs and train stations is to consider a police dog’s reaction to you as ‘reasonable suspicion’.
Police will ask if you’ve got anything on you that you shouldn’t; you need to make sure you don’t accidentally consent to a search.
“When people are asked to do something by the police, the best thing to say to the officer is ‘I don’t want to do this but I will do it if not doing it is an offence’,” Mr Porter said.
In an ordinary search, the most invasive thing police can ask you to do is shake your hair or open your mouth. They can also ask you to remove your outer clothing (jacket).
They’re not allowed to pat down your crotch unless they still have reasonable suspicion after the initial search. The discretion is theirs but they need to consider it serious and urgent enough for a strip search to take place. The search must be done in private, by an officer of the same sex.
If you are arrested, keep calm and insist politely on legal representation. Police are only allowed to detain you for four hours. After this they can make an application to detain you for another eight, at which point they must either charge you or let you go. Police can choose to not include time spent recovering from intoxication in those hours.
By Jason Marshall
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