Scheme
National Drug Strategy Committee,
Department of Health and Family
Services (1998, 4 May). The Social
Impacts of the Cannabis Expiation
Notice Scheme in South Australia.
Presented to the Ministerial Council
on Drug Strategy
Department of Health and Family Services, Canberra. Copyright 1998.
Contents
| i. Acknowledgments | ii. The Research Team | iii. Executive Summary |
I. Introduction | II. Outline of Research Components | III. Results |
IV. Discussion | V. Summary and Conclusions | References | Appendix 1 |
Appendix 2
i. Acknowledgments
The research investigators for the Cannabis Social Impacts Study
acknowledge the funding and support provided by the Commonwealth
Department of Health and Family Services. The contribution of the
Commonwealth-convened Steering Committee for the project is also
gratefully acknowledged.
The research team would like to thank the following agencies which
provided substantial support for the research, through the provision of
facilities and staff resources for the day-to-day operation of the
study: the Drug and Alcohol Services Council (SA); the National Centre
for
Research into the Prevention of Drug Abuse (WA); the National Centre for
Education and Training on Addiction (SA); and the National Drug
and Alcohol Research Centre (NSW).
Finally, thanks go to the numerous agencies and consultants who
contributed to the work of the researchers, in particular, the South
Australia
Police, the Office of Crime Statistics of the South Australian
Attorney-General's Department, and the Western Australian Crime Research
Centre.
(Top)
ii. The Research Team for the Cannabis Social Impacts Study
Chief Investigator:
Dr Robert Ali, Director of Clinical Policy & Research
Drug and Alcohol Services Council of South Australia
Co-investigators:
Paul Christie, Senior Research Officer
Drug and Alcohol Services Council of South Australia
David Hawks, Professorial Fellow
Simon Lenton, Research Fellow
National Centre for Research into the Prevention of Drug Abuse
Curtin University of Western Australia
Dr Wayne Hall, Professor, Director
Neil Donnelly, Research Fellow
National Drug and Alcohol Research Centre
University of New South Wales
Research Team: Project Staff and Consultants
Alisen Brooks, Project Officer
Rachel Humeniuk, Project Officer
Drug and Alcohol Services Council of South Australia
Penny Heale, Project Officer
Mike Bennett, Project Officer
National Centre for Research into the Prevention of Drug Abuse
Curtin University of Western Australia
Dr Adam Sutton, Criminologist
University of Melbourne, Department of Criminology
Libby McMillan
McMillan Management Consulting
Dr Steve Allsop, Associate Professor, Director
Alex Ask, Project Officer
National Centre for Education and Training on Addiction
John Moss, Health Economist, Senior Lecturer
University of Adelaide, Department of Public Health
(Top)
iii. Executive Summary
This study aimed to compare the social impacts of the two main models
found in Australia for dealing with minor cannabis offences: total
prohibition, and prohibition with civil penalties. In addition, it
sought to evaluate in detail the operation and acceptability of an
existing
expiation scheme for minor cannabis offences, South Australia's Cannabis
Expiation Notice (CEN) scheme. One of the main questions
underlying the investigation was whether the reduction in criminal
penalties that accompanies an expiation approach might lead to differing
social consequences for offenders and for the community as a whole.
Among the key questions for the research to address were:
1.Did the CEN Scheme affect the prevalence, incidence or pattern of
cannabis use in South Australia?
2.Did the CEN Scheme reduce or increase law enforcement and/or
criminal justice system costs?
3.How did the police go about enforcing the CEN Scheme?
4.What is the adverse impact of a criminal conviction for cannabis
use or possession on the employment prospects of the person
convicted?
5.Did the CEN Scheme increase the extent to which users grew their
own supplies of cannabis?
6.What are the main reasons for the high rate of non-expiation of
cannabis expiation notices?
7.What is the level of public understanding of the law concerning
cannabis under the CEN scheme?
A numbers of separate research studies were formulated as part of the
overall study plan. These were:
1.A statistical analysis of cannabis offences under the Cannabis
Expiation Notice scheme in South Australia since 1987
2.A statistical analysis of cannabis offenders in the Western
Australian criminal justice system from 1993 to 1995
3.A cannabis offender interview study, comparing the impact of
civil penalties for minor cannabis offences in South Australia with the
impact of conviction in Western Australia
4.A survey of peak employer groups to compare employment impacts in
South Australia and Western Australia
5.A study of the effects of the CEN scheme on levels and patterns
of cannabis use in South Australia
6.A population survey of public awareness, knowledge and attitudes
regarding the CEN scheme in South Australia
7.A study of costs associated with the operation of the CEN scheme
in South Australia
8.A review of law enforcement and other criminal justice attitudes,
policies and practices regarding cannabis and cannabis laws in South
Australia
The main findings of the study are as follows:
The establishment of the Cannabis Expiation Notice (CEN) scheme
in South Australia in 1987 has resulted in some degree of
"net-widening", in that the number of minor cannabis offences
detected under the scheme increased about two and a half times
between 1987 and 1996. This increase appears to be mainly due the
greater ease with which a CEN can be issued under the scheme,
compared to the procedures for an arrest and charge that would
required for a prosecution.
Since the introduction of the CEN scheme, the rate of expiation
of notices has remained low compared with other types of
infringement notices, and has remained fairly stable at
approximately 45% for the last few years of operation of the scheme. The
reasons for the low rate of expiation of cannabis offences are
likely to relate to financial difficulty experienced by a substantial
proportion of those detected for minor cannabis offences, as well
as poor understanding amongst this group of the actual legal status
of minor cannabis offences and the consequences of failure to pay
expiation fees.
Around 90%of those CENs which were forwarded for prosecution
between 1991 and 1996 resulted in a conviction being recorded
against the offender, because expiation fee payments were not
made. This represents about 45% of all CENs issued over that period,
and a large number of offenders for whom the conviction would
have been avoided had they payed expiation fees on time.
The rate of expiation of CEN offences may improve following
recent changes to the way in which all expiable offences are
administered under the Expiation of Offences Act, 1996. The
provision to offenders of a range of payment options (eg. instalment
payments, community service) which can be specified before an
unpaid CEN matter is forwarded for prosecution may result in a
higher proportion of CENs being expiated. In addition, the
provision of clearer and more detailed information on the consequences
(esp. conviction) of failure to pay expiation fees may help to
improve expiation rates. Ongoing monitoring will be required to
determine whether the new CEN forms and payment provisions bring
about such changes.
Around 5% of CEN matters are withdrawn before payment is made or
prosecution is completed, most likely due to inadequate
information being available to ensure a successful prosecution in
the event of failure to pay expiation fees. A further proportion would
be withdrawn or dismissed after court proceedings have been
completed, involving cases where the offenders could not be located for
follow-up regarding payment of fines.
National population survey data indicate there has been a
national increase in self-reported lifetime cannabis use between 1985
and 1995, with a greater degree of increase in South Australia than
in the average of the other Australian states and territories. However,
the South Australian increase is unlikely to be due to the CEN
system because: (1) similar increases occurred in Tasmania and
Victoria, where there was no change in the legal status of
cannabis use; (2) there was no differential change in weekly cannabis
use in
South Australia as compared with the rest of Australia, and (3)
there was no greater increase in cannabis use among young adults aged
14 to 29 years in South Australia.
Many minor cannabis offenders in both South Australia and Western
Australia appear to be people who are otherwise law-abiding.
Surveys of samples of cannabis offenders in both states found
that the majority in both states had respect for police and the law in
general. It was also found that their offence apprehension and
subsequent arrest (WA) or issuing of a CEN (SA) had no impact on
their patterns of cannabis or other drug use.
Interviews with cannabis offenders found that negative employment
consequences arising from a cannabis offence apprehension were
more likely to be experienced by offenders in Western Australia
compared to South Australia (eg. loss of job, missing out on a job
opportunity). Those in the WA system were also more likely to
report relationship problems, accommodation problems, and further
involvement with the criminal justice system related to their
first minor cannabis offence. In terms of impacts upon drug use and
travel
opportunities, no differences were found between offenders in
both states. However, offenders in Western Australia were more likely
than those in South Australia to have more less favourable
attitudes towards police following their cannabis offence detection.
No differences were found in the self-reported attitudes of
employers in both South Australia and Western Australia towards
employing people with prior cannabis offences, there being a
general lack of discrimination expressed against such offenders. This is
somewhat at odds with the reported experiences of cannabis
offenders in the two states. It was clear that cannabis offending is not
an
important part of employer screening in many employment areas,
although employers in both states were concerned about the
potential risks associated with cannabis intoxication in the
workplace, and the long term effects of cannabis use on work
performance.
While there is a level of acceptance in the South Australian
community of personal cannabis use among adults, activities relating to
the
commercial sale or supply of cannabis are not viewed favourably
by the public.
The general public in South Australia had a reasonable awareness
of the CEN scheme in general, but retained a fair degree of
confusion about the details of the CEN scheme and the
consequences of being detected for various minor cannabis offences.
There
was also incomplete recognition of the possible health risks
associated with long-term or heavy cannabis use. As many people issued
with expiation notices are heavy consumers of cannabis, there is
an opportunity to deliver health messages with a CEN at the time of
issuing.
Despite the fairly low rate of expiation and the apparent
"net-widening" observed under the CEN scheme since its implementation in
1987, it would seem that the scheme is more cost effective for
dealing with minor cannabis offences than a prohibition approach based
predominantly on prosecution and conviction. It might be expected
that greater efficiencies could be achieved if the rate of expiation
can be increased in the future, with a corresponding reduction in
the number of CEN fee defaulters who receive convictions.
There is clear and widespread support for the CEN scheme amongst
South Australia law enforcement and criminal justice personnel.
This support is based largely on the perception that the
expiation approach provides a fair and cost-effective way of dealing
with
minor cannabis offences.
Concern has been expressed by some South Australian police
officers about the potential for exploitation of the CEN scheme by
organised criminal syndicates who grow commercial quantities of
cannabis in separate locations while operating within the expiable
cultivation limit of 10 plants. In order to address this issue,
it has been suggested that the CEN scheme be modified to reduce to
maximum expiable number of plants under cultivation from ten to
three or four.
In addition to the provision of more payment options for
offenders and more detailed information on the financial and legal
consequences of non-payment, other suggestions have been put
forward for possible changes to the CEN scheme in South Australia,
which may be of interest to other jurisdictions considering the
adoption of expiation systems for minor cannabis offences. A system
involving a more graduated scale of expiation fees, including
lesser fees for offences involving very small amounts of cannabis, could
result in higher rates of expiation, especially where offences
involve young people. Other suggestions which may reduce the extent of
net-widening under an expiation approach, should that be deemed
desirable, are: inclusion of a provision for some form of cautioning
for certain categories of minor cannabis offence; and dropping
the offence of possession of equipment for using cannabis, as it is a
very common offence under the CEN scheme, and is mostly detected
in the context of CENs being issued for other cannabis
offences.
(Top)
I. Introduction
I. 1. Background
I. 2. Previous Research in Australia on Cannabis Expiation
Systems
I. 3. Overall Objectives and Aims of the Study
I. 1. Background
In 1994, the National Task Force on Cannabis presented a series of
technical reports on cannabis to the Ministerial Council on Drug
Strategy.
Among the recommendations put forward by the Task Force was a
recommendation that consideration be given by jurisdictions to removing
criminal penalties for personal cannabis use offences. Furthermore, the
Task Force recommended that further research be conducted evaluating
the impacts of expiation systems for dealing with minor cannabis
offences, as found in South Australia, the Australian Capital Territory,
and more recently in Northern Territory (Ali & Christie, 1994).
Following on from the Task Force's recommendations, the Commonwealth
Department of Health and Family Services (formerly the
Department of Human Services and Health) commissioned the first phase of
an investigation which aimed to look in detail at the social
impacts of the existing legislative options for cannabis in Australia.
This research was coordinated by the Australian Institute of
Criminology, and was completed in 1995 (McDonald & Atkinson, 1995). It presented
analyses of the range of legislative approaches to minor cannabis
offences found in Australia, based on readily available data. The first
phase research identified gaps in the available data on minor cannabis
offences in Australia, and offered recommendations for more detailed
research which would permit more definitive evaluation of the various
legislative approaches to minor cannabis offences operating in
Australia. Emphasis was given to the importance of assessing the impacts
of expiation systems for minor cannabis offences. The South Australian
Cannabis Expiation Notice scheme was an obvious choice on which to
base an evaluation of the expiation approach, as it was the first such
system to be implemented in Australia.
Following the first phase research, the Commonwealth Department of
Health and Family Services invited tenders for the second phase of the
project. The research brief initially called for a national study which
looked at the full range of legislative approaches to minor cannabis
offences which were operating in Australian jurisdictions, but with a
particular focus on the expiation systems operating. With recognition of
the substantial resources required to undertake such a broad-based
research study, a consultation process ensued, which resulted in the
formulation of a more focused research strategy. This involved an
investigation which aimed to compare the social impacts of the two main
models found in Australia for dealing with minor cannabis offences:
total prohibition, and prohibition with civil penalties. Western
Australia was chosen as an example of a total prohibition approach to minor
cannabis offences, and South Australia, with its Cannabis Expiation
Notice (CEN) scheme, was chosen as an example of prohibition with civil
penalties. Using Western Australia as a comparison state to South
Australia had the advantage of enabling access to high quality criminal justice
data through Western Australia's Crime Research Centre. South
Australia's CEN scheme is one of three expiation schemes for minor
cannabis offences operating in Australia (the others being in the
Australian Capital Territory and the Northern Territory), and is the
longest running such system. While the CEN scheme in South Australia
has been the subject of previous research studies (Christie, 1991; Ali &
Christie, 1994; Donnelly, Hall & Christie, 1995; McDonald &
Atkinson, 1995), none of those studies had involved such detailed
investigations as were planned for the second phase of the Social
Impacts Study.
The present report represents an overview of the main findings and
conclusions arising from the second phase research into the social
impacts of the legislative options for dealing with minor cannabis offences in
Australia. The emphasis in the study has been on comparing the impacts
of the expiation approach in South Australia with those of Western
Australia's prohibition model. It is intended that this approach will
inform future debate and decision-making regarding the appropriateness of the
models represented here, and suggest areas in which either approach
can be improved in terms of operational efficiency and minimisation of
negative impacts upon individual offenders and upon the community as
a whole. The following sections provide a brief overview of previous
research which aimed to evaluate aspects of the Cannabis Expiation
Notice (CEN) scheme of South Australia, and an outline of the aims of
the second phase research as a whole, and of the various research
components which were formulated and undertaken by the research team.
I. 2. Previous Research in Australia on Cannabis Expiation Systems
The Cannabis Expiation Notice (CEN) scheme in South Australia was the
first infringement notice system for minor cannabis offences to be
implemented in Australia, coming into operation in April 1987 (for more
information on the cannabis laws in South Australia, and expiable
offences under the CEN scheme, see Appendix 1). While it was introduced
with no specific plan for evaluation of its effects, an early
evaluation was carried out based on the first nine months of operation
of the scheme (Sarre, Sutton & Pulsford, 1989). This study found that
the introduction of the CEN scheme did not give rise to undue technical
difficulties for law enforcement personnel, including potential
problems in verifying identity of offenders. The report acknowledged
that statistical data on the first nine months of operation of the
scheme were not enough to base a definitive evaluation of the scheme on.
An important issue that was highlighted in this research was that a
change to an alternative system to formal prosecution may actually lead
to an increase in the number of people and the range of behaviours which
are subject to some type of social control - "net-widening". This study
was not able to identify any such net-widening, as the nine month time
period for the study was too short for such a consequence to become
apparent. However, the researchers noted that the short time period for
the study could not allow a net-widening effect to be ruled out as a
longer term consequence. Another finding of this study that was of
relevance to future research was that offenders of lower socio-economic
status figured disproportionately among those who were prosecuted for
failure to pay expiation fees. This was an important preliminary
finding, and a suggestive area for investigation in the present study.
Finally, the study showed that the CEN system at that time did not
appear to have an impact on court workloads for minor cannabis offences. It had
been anticipated that the court load of minor cannabis offence
prosecutions would be reduced, but a lower than expected rate of
expiation resulted in little change in the number of minor cannabis
offences appearing before the courts. The emergence of net-widening at a later
stage could also contribute to this observation.
In 1991, the Drug and Alcohol Services Council released a report which
focused solely on the possible effects of the CEN scheme on
prevalence of cannabis use in the South Australian community, through
the examination of population survey data (Christie, 1991). National
Drug Strategy household surveys and state-based school surveys of drug
use provided measures of cannabis use prevalence, from periods
before and after the introduction of the CEN system, for South Australia
as well as other states. This study found no conclusive evidence for
changes in levels or patterns of cannabis use which might have been
attributable to the CEN system. Donnelly and Hall (1994) updated and
refined this research for the National Task Force on Cannabis, with
similar results. A more detailed presentation of this research is to be
found in Donnelly, Hall and Christie (1995). For the present study, it was
possible to further update this research with more recent population
survey data from the 1995 National Drug Household Survey. However, with all of
these analyses, the potential problem exists of lack of statistical
power to detect trend differences between jurisdictions.
The Phase I research which preceded the present study found, in the
South Australian component (Christie & Ali, 1995), that there had been a
substantial increase in detections of minor cannabis offences since the
CEN scheme came into operation, from around 6,500 offences detected
under the CEN scheme in 1987/88 to over 14,000 in 1991/92 (with a total
offence rate of around 900 minor cannabis offences reported per
100,000 population). This was the net-widening phenomenon predicted by
Sarre et al (1989) in their early evaluation report on the first nine
months of operation of the CEN scheme. Given that the other studies
concerned with trends in prevalence of cannabis use showed no evidence
for a comparable increase in population rates of cannabis use in South
Australia up until around 1993, the implication was that the increase in
detections was related to other factors, such as changes in policing
practices.
The Phase I research also showed that Western Australia has a
well-developed criminal justice data collection system (Lenton, 1995).
Western
Australia provides a good example of a jurisdiction with a total
prohibition approach to minor cannabis offences, with relatively high
levels of enforcement; the offence rate for cannabis possession and use in WA was
271 per 100,000 of population in 1993, the third highest of the
Australian jurisdictions having a total prohibition approach, and it had
the highest per capita rates for possession and use of a smoking
implement at 441 per 100,000 persons in 1993 (McDonald and Atkinson,
1995). Members of the Phase I research team in Western Australia
(also part of the present project team) worked closely with the Crime
Research Centre in the Phase I research to generate comprehensive
profiles of cannabis offences and offenders in that state. The present
study builds on that earlier collaboration.
While there has been a fair amount of speculation about the likely
impacts of options other than prohibition for minor cannabis offences,
there has not been a thorough documentation of the social costs of the current
prohibition of cannabis which is in force in the majority of Australian
jurisdictions. In addition, there has not been a detailed economic
appraisal of the CEN scheme in South Australia which would permit
reasonable conclusions to be drawn about the relative costs and efficacy
of a prohibition approach. It should be pointed out that the expiation
approach for minor cannabis offences in place in the Australian Capital
Territory (ACT) ? the "SCON" system for Simple Cannabis Offence
Notices ? was originally considered for inclusion in the present
research study, but resource limitations meant that the research group
needed to confine its investigations to the CEN scheme in South Australia,
which was felt to be representative of the "prohibition with civil
penalties approach". Further background information on the operation of the
expiation system in the ACT can be found in the report of the first
phase of research for the Cannabis Social Impacts Study (McDonald & Atkinson,
1995).
The following section outlines the aims of the second phase research
study as a whole. This is followed in Section 2 by descriptions of the
various research components which made up the second phase of the Social
Impacts Study.
I. 3.Overall Objectives and Aims of the Study
The original consultant's brief for the second phase of research for the
Cannabis Social Impacts Study identified a number of "questions of
central importance" which the proposed research plan should be able to
address. These issues were thought to be of particular importance to
policy decisions relating to legislative approaches for dealing with
cannabis use. The key questions identified in the consultant's brief are
primarily related to the operation and effects of the CEN scheme of
South Australia, as it had been determined that a study based primarily
on an evaluation of the impacts of the CEN scheme would be the most
feasible and cost effective way to explore the impacts of an
infringement notice approach. Implicit in the research requirements outlined in the
brief was the need for a direct comparison of outcomes between the CEN
scheme and a representative prohibition approach. The Western Australian
system was thought to provide a suitable comparison, particularly
because of the availability of detailed criminal justice data from that
state.
The Commonwealth steering committee which formulated the project brief
and terms of reference recognised that it would not be possible to
obtain definitive answers on all issues that are of interest in a policy
sense, nor would it be possible to examine all aspects of the social
impacts of the various legislative options for cannabis use. While all of the
key questions identified were amenable to investigation through the
research carried out, they were in a sense indicative of a much wider
range of questions which could be asked of the research. As work on the
project progressed, numerous other issues emerged as being of potential
importance to policy making in the area of cannabis policy, and will
be highlighted later in this report. The key questions identified in the
original consultant's brief were:
1.Did the CEN Scheme affect the prevalence, incidence or pattern of
cannabis use in South Australia?
2.Did the CEN Scheme reduce or increase law enforcement and/or
criminal justice system costs?
3.How did the police go about enforcing the CEN Scheme?
4.What is the adverse impact of a criminal conviction for cannabis
use or possession on the employment prospects of the person
convicted?
5.Did the CEN Scheme increase the extent to which users grew their
own supplies of cannabis?
6.What are the main reasons for the high rate of non-expiation of
cannabis expiation notices?
7.What is the level of public understanding of the law concerning
cannabis under the CEN scheme?
The full terms of reference (see Appendix 2) provide a more detailed
outline of the issues identified for exploration in the second phase
research project.
(Top)
II. Outline of Research Components
In response to the research brief which was developed for the present
study, the research team proposed a research design which incorporated
a number of separate research investigations, all of which were to
contribute to the task of providing a definitive evaluation of the
legislative approach to minor cannabis offences found in South Australia in its
Cannabis Expiation Notice (CEN) scheme. Important comparisons with a
prohibition approach to minor cannabis offences were made possible by
including some law enforcement statistics and interview data on
cannabis offenders from Western Australia for a number of study
components. The study components were as follows:
1.Cannabis Offences Under the Cannabis Expiation Notice
Scheme in South Australia
2.Cannabis Offenders in the Western Australian Criminal
Justice System 1993-1995
3.Comparison of the Impact of Civil Penalties for Minor
Cannabis Offences With the Impact of Conviction: the
Cannabis Offender Interview Study
4.Survey of Peak Employer Groups: Comparison of Impacts of
Minor Cannabis Offences on Employment in South
Australia and Western Australia
5.Effects of the CEN Scheme on Levels and Patterns of
Cannabis Use in South Australia
6.Public Awareness, Knowledge and Attitudes Regarding the CEN
Scheme in South Australia
7.Costs Associated with the Operation of the CEN Scheme in
South Australia
8.A Review of Law Enforcement and Other Criminal Justice
Attitudes, Policies and Practices Regarding Cannabis and
Cannabis Laws in South Australia
In presenting the research components with their main findings in this
report, it must be emphasised that the systems for dealing with minor
cannabis offences in South Australia and Western Australia represent
particular examples of their respective legislative approaches. The CEN
scheme in South Australia is only one example of an expiation approach
(or "prohibition with civil penalties"), and an important underlying
assumption with all of the work undertaken for this project was that the
observed impacts of the CEN scheme should be taken as applying to
that particular implementation of an expiation approach. Different
expiation schemes could well have significantly different outcomes,
depending on the operational parameters of the system. A further
corollary of this approach is that the observed impacts of an expiation
scheme such as the CEN scheme might be amenable to change, given
modification of the legislative framework, or the operational and
administrative procedures in place under the system.
It was with the above approach in mind that the research team developed
the project research plan, comprising the study components listed
above. The following sections provide more detail on the aims and
methods utilised in each of the separate study components.
Study No. 1: Cannabis Offences Under the Cannabis Expiation Notice
Scheme in South Australia
This study component was an analysis of minor cannabis offences dealt
with under the CEN scheme and through the courts, based primarily
on CEN and arrest data from South Australian Police, as well as data on
offences before courts. Before the present study, only limited
summary figures have been published on the operation of the CEN system
each year in the South Australia Police Commissioner's Annual
Reports. These data have been limited mainly to basic information on
numbers of notices expiated in each financial year, in some cases broken
down by type of expiable offence. For the first phase of research on the
present project, the South Australian Police Statistical Services
Section
was also able to provide information on the total numbers of CENs issued
in each year, allowing determination of expiation rates.
Aims:
To describe trends in law enforcement activity in relation to
minor cannabis offences in South Australia, through the examination of
numbers of detections of minor offences under the CEN scheme;
To examine the types of minor cannabis offences for which CENs
have been issued;
To describe the characteristics of offenders under the CEN
scheme, including comparison of offenders who expiated CEN fines with
those who failed to expiate;
To examine the rates of expiation for different minor cannabis
offence types;
To examine the extent of repeat offending under the CEN scheme,
and compare rates of repeat offending among expiators and
non-expiators;
To examine the extent to which CEN offences might be withdrawn or
cancelled due to incomplete information, and the degree to
which non-expiators of CENs might be lost to follow-up through
the prosecution process (e.g. through false or incorrect personal
ID);
To compare the penalty outcomes of conviction for minor cannabis
offences with those arising from receiving and expiating a CEN
for a minor cannabis offence;
Methods:
South Australian Police data on CENs were downloaded and collated for
most years of operation of the system. These data were linked with
relevant data on prosecutions, so that data on expiation fee defaulters
could be analysed, and information on prosecution outcomes could be
examined. The data linkages required considerable police time and
resources, because expiation offence records are usually kept separate
from criminal offence and prosecution outcome data. Detailed analyses were
able to be performed on CEN data from the 1991/92 financial year up
to the 1995/96 financial year. The Statistical Services section of SA
Police conducted the substantial data management tasks, and provided the
research team with detailed tables of summary data. Owing to the way in
which criminal history data are stored, and the less reliable
information relating to proof of identity for CEN offences generally, it
was not possible to readily link information on prior criminal history
with the CEN offence and prosecution outcome data for the substantial
number of minor cannabis offences.
Study No. 2: Cannabis Offenders in The Western Australian Criminal
Justice System 1993-1995
This component was formulated as an extension of the previously outlined
study, to provide comparison data from Western Australia on
minor cannabis offences under their prohibition model. The Western
Australian data are presented as a separate study and technical report.
Western Australia provided an ideal comparison for South Australia's CEN
system, as it is a jurisdiction with a relatively high enforcement
rate, and has readily available good quality data on criminal justice
activity, through its Crime Research Centre. Data on persons whose
first-time arrest was for a minor cannabis offence provide a useful
comparison point for the data on CEN offences from South Australia. If
found guilty, these first time arrestees receive a criminal record as a
result of their conviction.
Aims:
To describe the extent of offence detection/arrest for minor
cannabis offences in Western Australia;
To analyses offence outcomes and penalties for minor cannabis
offence detections in Western Australia;
To provide a basis for comparison of offence detection loads and
offences outcomes between jurisdictions representing a prohibition
approach to minor cannabis offences - Western Australia - and a
civil penalty approach - South Australia.
Methods:
Criminal justice system data for Western Australia were generated and
tabulated for the research team by the Crime Research Centre. Arrest
data were organised by individual arrests and distinct persons, where a
cannabis offence was the most serious offence.
Information was generated on number of cannabis charges per year and
proportion of all drug charges involving cannabis. The demographic
characteristics of offenders were examined, and offence type and extent
of repeat offending were also analysed.
Study No. 3: Comparison of the Impact of Civil Penalties for Minor
Cannabis Offences With the Impact of Conviction: the Cannabis
Offender Interview Study
This was a major study component involving in-depth data collection from
cannabis offenders in both South Australia and Western Australia.
In this report, and in the associated technical papers, the findings are
presented in three separate areas:
1.Interviews with South Australian offenders under the CEN scheme;
2.Interviews with Western Australian minor cannabis offenders;
3.Comparison of observed impacts for South Australian and Western
Australian minor cannabis offenders.
Aims
To explore the social impacts of receiving and expiating a CEN
for a minor cannabis offence, and compare these with the impacts of
receiving a conviction for a minor cannabis offence, due to
failure to expiate a CEN fine, under the South Australian scheme;
To explore the reasons for failure to expiate CEN fines in South
Australia;
To describe, assess and compare the formal (or official) and
informal (or social) effects of arrest and criminal conviction, with
particular reference to employment, on individuals arrested for
simple cannabis offences in a representative "total prohibition"
jurisdiction, Western Australia.
Methods:
An in-depth questionnaire was developed for use in face-to-face
interviews with cannabis offenders in South Australia and Western
Australia.
In South Australia, three groups of cannabis users were recruited for
the study, each with about 70 subjects:
1.minor cannabis offenders who were issued with a CEN and paid the
expiation fee within the required time period;
2.minor cannabis offenders who have been processed through the
court system because of failure to pay expiation fees arising from
receipt of a CEN;
3.a group of cannabis users who had never been detected or
convicted for a minor cannabis offence (as a control group, to allow
examination of the effect of cannabis use itself, or being part
of a cannabis-using culture, on social outcomes of interest).
In Western Australia, a group of around 70 subjects was recruited,
consisting of convicted minor cannabis offenders. This group allowed
comparison of the impacts of different legislative models on key
outcomes of interest, particularly the effects of the enforcement
strategies and
associated penalties on employment status and opportunities.
For this study, subjects were chosen who had cleared their last CEN
offence or received their last minor cannabis offence conviction at
least 6
months and not more than 10 years prior to the interview date. Subjects
were recruited principally through notices in targeted media outlets,
flyers and through offenders' personal networks (i.e. "snowballing").
Some mass media recruitment was undertaken in Western Australia.
Some matching was done between the groups recruited in South Australia
and Western Australia in terms of age, gender, and other possible
confounders, but this was limited due to the restraints on available
subjects imposed by the recruitment strategies.
Once subjects had been screened for eligibility, appointments for
interviews were made, to take place at a location suitable to the
subject, eg.
research and/or treatment service agencies, public locations. An
information sheet was read to subjects, outlining the nature of the
project, and
their involvement. Issues of confidentiality were explained, and
subjects were paid $20 as compensation for their time spent in the
interview.
Written and or verbal consent for the interview was obtained, and
separate written consent was sought to confidentially access
interviewees'
criminal records to confirm their offending history. Subjects were
informed that they could refuse to answer any questions, and terminate
the
interview at any time.
Interviews of subjects in the "offender" groups (SA and WA) took up to
two hours, and included an audio-taped qualitative component. The
qualitative component involved a description of the circumstances of the
offence for which they received a CEN (SA only) or were charged for
a minor cannabis offence (WA), their views on their dealings with the
legal system, their experience in court (if relevant), and any examples
of
how the offence and its outcome (including conviction, if relevant) had
affected their lives. Qualitative sections of the interviews were
transcribed, and were used to provide illustrative examples of various
offence outcomes (included in the full technical documents). The main
part of the interview was structured and focused on items such as:
Current demographic information (gender; date of birth;
education; employment; family and living arrangements; income and
postcode);
Circumstances of cannabis offence detection (place, time, & date;
what they were doing at the time; who they were with; recent alcohol
and drug use at time of offence; reason for police presence;
specific cannabis offences for which CENs were issued or arrests made;
other concurrent offences; actions and demeanour of police).
Subjects were also asked to rate how justly/fairly they believed the
laws
to be, and how justly/fairly they believed they were treated by
police;
Demographic characteristics at time of cannabis offence
detection;
For SA "expiator" group: offences and expiation fees payable, and
whether these were paid within the 60 day expiation period;
For SA "expiator" group: reasons for paying fines within
expiation period;
For SA "non-expiator" group: reasons for failure to pay fines
within expiation period (eg. inability to pay, already required to
appear
in court for other matter, etc.); whether they chose to respond
to summons by pleading guilty in writing, or by appearing in court in
person, and reasons for choice;
For SA and WA "convicted" groups: circumstances of court
processing, including date and place of appearance, whether they had
legal representation, legal aid or other support in court;
subject rating of how justly/fairly they believed the court process was;
For subjects in SA "expiator" and SA/WA "convicted":
attitudes to police, legal system in general, laws
relating to cannabis, likelihood of conviction if summonsed to appear in
court
for cannabis offence, extent to which they regard
conviction as a serious and detrimental outcome;
impact of expiated offence or conviction on social
relationships (family, peers, employer), economic status (including work
problems, loss of employment, restrictions on educational
enrolment, accommodation, travel or career);
drug use history prior to and subsequent to first offence
detection (including views on whether changes in use were due to
deterrence effects following detection);
offending history (including cautions), subsequent
offending and arrests;
sources of cannabis supply, knowledge and experience of
cannabis market, including extent of home cultivation of cannabis
plants;
knowledge of laws applying to cannabis;
self-perception as a criminal, extent to which they
believe others perceive them as such and extent to which this may be
related
to cannabis offence, or other behaviours (including other
drug use);
perceptions of seriousness of a variety of offences in
comparison to cannabis offences.
The interviews with SA cannabis users with no history of involvement
with the law were somewhat shorter in duration, covering:
Current demographic information (gender; date of birth;
education; employment; family and living arrangements; income and
postcode);
Drug use history, including cannabis, alcohol and other drugs;
Sources of cannabis supply, knowledge and experience of cannabis
market, including extent of home cultivation of cannabis plants;
Knowledge of laws applying to cannabis;
Perceptions of seriousness of a variety of offences in comparison
to cannabis offences;
Perceptions on whether their cannabis use has affected education
and/or employment options, interpersonal relationships, financial
status, or any other social/personal areas.
Study No. 4: Survey of Peak Employer Groups: Comparison of Employment
Impacts in South Australia and Western Australia
This study component was conceptualised as an extension of the interview
study of cannabis offenders, in that it explored in greater detail the
potential negative consequences on employment arising from being
detected for a minor cannabis offence, and in particular receiving a
conviction for a minor cannabis offence. It was formulated to complement
the information from the interview study, by gathering information
on the attitudes, knowledge and practices of employers in relation to
cannabis use and cannabis offending.
Aims:
To explore and compare the attitudes and practices of
representative employers in South Australia and Western Australia with
regard
to employment of cannabis offenders;
To examine whether employers might discriminate against
prospective employees who might have had a prior cannabis offence -
resulting in either conviction (WA) or expiation notice (SA).
Methods:
This study involved a telephone survey of about 50 peak employer groups
in both South Australia and Western Australia. The interview
sought information on:
The range of attitudes and practices within different industry
sectors towards minor cannabis offences, among representative samples
of employers;
Whether employers routinely asked job applicants about cannabis
convictions or expiated minor cannabis offences;
Whether employers conducted checks of prospective employees for
prior cannabis offences;
Whether employers would discriminate between applicants of equal
competence on the basis of a cannabis offence history.
Study No. 5: Effects of the CEN Scheme on Levels and Patterns of
Cannabis Use in South Australia
This research component entailed a comprehensive update on the possible
effects of the CEN scheme on levels and patterns of cannabis use in
South Australia, based on existing population drug use survey data. The
study represents the most recent update of earlier work conducted by
Christie (1991) for the Drug and Alcohol Services Council (SA), Donnelly
and Hall (1994) for the National Task Force on Cannabis, and
Donnelly, Hall and Christie (1995).
Aims:
To examine the possible effects of the introduction of the CEN
scheme in South Australia on prevalence of cannabis use in that state,
in terms of the proportions of the population who have tried
cannabis, and who use cannabis on a weekly basis.
Methods:
As mentioned, this research component updates earlier work on trends in
cannabis prevalence, by comparing rates of use in South Australia
with rates observed in other Australian jurisdictions. The present
analysis builds on earlier ones through the addition of population
survey data
from the 1995 National Drug Household Survey, thereby extending the
total period of trend analysis from 1985 to 1995, covering five
separate national surveys. The analysis of these data involved a
comparison of self-reported cannabis use rates (ever and weekly use) in
South
Australia with those of other states, with particular attention given to
examining possible differences in cannabis use trends between the
jurisdictions. Thus, observed trends in cannabis use in South Australia
are placed in context by comparison with trends elsewhere.
Aspects of cannabis use relating to intensity, amount, duration,
acceptance and circumstances of use were not amenable to examination
through
this study component, due to the lack of relevant detailed information
collected in population drug use surveys.
Multivariate statistical methods used in this research have been
developed through the work on the earlier published studies of cannabis
prevalence, and have been further enhanced for the present study.
Logistic regression was used to test for trends in use, controlling for
age and
gender.
Study No. 6: Public Awareness, Knowledge and Attitudes Regarding the CEN
scheme in South Australia
Australian data on cannabis use and related attitudes have been
collected from the 1970's up until the 1990's. Questions regarding
attitudes to
cannabis use and legislative approaches to cannabis have been included
in the National Drug Household Surveys conducted for the National
Drug Strategy. In 1993, an Australia-wide telephone survey which focused
on public opinion regarding cannabis legislation was undertaken
for the National Task Force on Cannabis (Bowman and Sanson-Fisher,
1994).
Being national surveys, these earlier investigations did not provide the
opportunity to ask specific questions on knowledge and attitudes
pertaining to the CEN system in South Australia. The present study was
formulated to allow a more thorough investigation to be undertaken,
based solely on a South Australian population sample.
Aims:
To review and summarise the existing data pertaining to the
social impacts of the CEN system, in terms of relevant indicators of
public
awareness, knowledge and attitudes regarding the cannabis laws in
South Australia, with particular reference to observable changes
over time;
To add to existing information on public awareness of cannabis
issues in South Australia, including knowledge and attitudes
regarding cannabis laws, cannabis use, the safety of cannabis
use, and the impact of the cannabis laws on youth, via the conduct of a
telephone survey of the general public.
Methods:
A key component of the study was the conduct of a literature review of
the data which already exists on the impact of the CEN system on
levels of cannabis use, and on community attitudes and knowledge
relating to cannabis use and legislative approaches in different
Australian
jurisdictions.
The main part of this study component involved the collection of new
data from a sample of 605 members of the general public in South
Australia aged between 14 to 70 years. A telephone survey methodology
was adopted, as it offered an efficient and cost-effective means of
collecting these data from the desired sample. The sample was drawn from
a random selection of telephone numbers using electronic white
pages. The sample was designed to be representative of the general
population in terms of gender and age. However, it included an over
-representation of respondents from non-metropolitan areas, so that
there was sufficient statistical power to permit comparison of urban and
non-urban responses. Up to three call backs were made to make contact
with each household, and five to get a respondent identified by the
nearest birthday method. Eligible respondents had to be permanent
residents at that address. A gender ratio 50:50 was set. All calls were
made
after hours and on the weekends. Refusals were not replaced by another
subject from the same household. A 90% response rate was achieved
among those whose eligibility could be determined.
The questionnaire was designed by the research team, and converted to
the Computer Assisted Telephone Interviewing (CATI) system by a
market research company which undertook the actual data collection.
Closed questions with comprehensive response options were used where
possible. Non-technical terms were used where possible, and explanations
provided of special terms such as decriminalisation and legalisation.
A number of the questions asked were derived from earlier surveys, so as
to permit comparison with their conclusions.
Among the key areas covered by the telephone survey were:
Prevalence and patterns of cannabis and other drug use (eg.
frequency, intensity, amounts used, duration and circumstances of use);
Attitudes towards cannabis and other drugs use (including
relative acceptability of other drugs);
Awareness of the laws regarding cannabis use (legality of
possession, risk of detection for possession, and probable legal
consequences of receiving a CEN);
Attitudes towards the cannabis laws and knowledge of the laws
(including the deterrence value of the CEN system, and impact of law
enforcement on civil liberties);
Demographic information.
Feedback on the pilot instrument was sought from key informants,
including drug workers, police and researchers. Additionally, the
questionnaire was shown to three people with strong views for or against
cannabis to check for potential bias. The finalised CATI version of
the instrument was piloted by the market research company prior to full
data collection.
Study No. 7: Costs Associated with the Operation of the CEN Scheme in
South Australia
Aims:
To explore the economic costs associated with the operation of
the CEN scheme in South Australia, including examination of the unit
costs of detecting and processing offenders under the CEN scheme
as compared to dealing with them through the courts.
Methods:
This study component utilised information from a number of sources to
try and estimate the costs associated with the operation of the CEN
scheme in South Australia. A unit cost approach to dealing with CEN
offences was adopted. Priority was given to estimating the cost of the
present system, as it was expected that currently available information
would be more reliable than earlier data. From statistical information
on
numbers of offences for which CENs have been issued, expiated and
prosecuted over the years, and from a variety of published and key
informant sources, it was possible to derive estimates for the unit
costs of dealing with minor cannabis offences under the CEN scheme,
including those which are cleared by being expiated, and those which are
not expiated and result in prosecution before the courts.
Among the outcome pathways for minor cannabis offenders that were
considered important to estimate unit costs for were: (1) CEN offenders
who expiated; (2) CEN offenders who failed to expiate and subsequently
appeared in court; (3) CEN offenders who failed to expiate, pleaded
guilty in writing, and did not appear in court, and (4) minor cannabis
offenders who are charged with non-expiable offences (e.g. under 18
years of age, offences in public) and were dealt with via the courts.
Furthermore, it was of interest to estimate the unit cost of
imprisonment for
those few offenders who might repeatedly fail to pay court-imposed fines
relating to a minor cannabis offence, as well as other possible
penalty management outcomes involving community services and payment by
instalments.
It was assumed from experience with other relevant contemporary data
sets that insufficient information would have survived from prior to the
introduction of the CEN scheme in 1987 on which to project forward to
the present day the costs under the former legislative arrangements. A
rough costing of a prosecution approach to dealing with minor cannabis
offences was considered important for comparison, and was estimated
by applying current information on the unit cost of processing a minor
cannabis offender solely through the court system (e.g for a
non-expiable minor offence) to an estimate of the expected number of
offences which might have been detected in South Australia up until the
present time, had the previous prohibition system remained in place.
The study aimed to distinguish costs from expenditures where possible,
and take account of factors such as revenue from expiation fine
payments. Consideration was also given to some of the intangible costs
associated with the operation of the CEN scheme.
The analyses of unit costs focused on costing offences from the time of
issue of a CEN. No attempt was made to account for the costs of
police activity in detecting cannabis offences, as it was felt that
there would be many factors which would make such costing unreliable
(e.g.
the extent to which police actively seek out minor cannabis offenders,
vs degree of opportunistic detection of minor cannabis offences). Some
analysis was conducted of the likely cost changes which would occur
under the CEN scheme given increased rates of expiation of CEN fees.
Study No. 8: A Review of Law Enforcement and Other Criminal Justice
Attitudes, Policies and Practices Regarding Cannabis and Cannabis
Laws in South Australia
As an adjunct to the information provided by the other study components
in the Cannabis Social Impacts Study, it was viewed as of key
importance to enable police and other criminal justice professionals to
provide input and advice on the ways in which the CEN system has
been operating.
Aims:
To examine attitudes, policies and practices regarding cannabis and
the cannabis laws within the police/law enforcement sector, and within
the magistracy and judiciary in South Australia.
Methods:
This study component involved two approaches:
1.Qualitative face-to-face interviews with key informants in the
law enforcement, court and other relevant sectors in South Australia, to explore their attitudes and experience in relation to the operation of the cannabis laws and the CEN scheme in particular;
2.Focus group discussions with officials involved in the
administration of the CEN scheme in South Australia.
Among the key informants and agencies identified for interview were the
Chief Justice, the Chief Magistrate, Office of the Director of Public
Prosecutions, the National Crime Authority, police prosecutors, the
officer in charge of the Drug Task Force, Drug Task Force and regional
detectives, police patrol officers, and personnel in the Correctional
Services and Attorney-General's Departments.
Among the key issues identified for discussion in interviews and focus
groups were:
whether the CEN scheme was working effectively, or whether South
Australia should revert to prosecuting minor cannabis offenders;
whether the CEN scheme had resulted in outcomes not anticipated
when the relevant legislation was enacted in 1987;
respondents awareness or perceptions of cannabis market dynamics,
and whether these had changed during the period of operation of
the CEN scheme in South Australia;
whether aspects of the CEN scheme legislation, regulations and
operational procedures now needed to be amended or updated; and
whether police, other criminal justice personnel and the public
had adequate understanding of the CEN scheme.
(Top)
III. Results
Study No. 1: Cannabis Offences Under the Cannabis Expiation Notice
Scheme in South Australia
Since the introduction of the Cannabis Expiation Notice (CEN) scheme in
South Australia in April 1987, the number of minor cannabis
offences for which CENs have been issued has increased, from 6,231
expiable offences in the 1987/88 financial year to a peak of 17,425
offences in 1993/94. In financial years 1994/95 and 1995/96, the numbers
of CENs issued have dropped slightly to 17,170 and 16,321 CENs
issued respectively. The overall increase in detected minor cannabis
offences (or "net-widening") appears unrelated to prevalence of cannabis
use, which has changed only slightly over the same period (see Study No.
5, "Effects of the CEN Scheme on Levels and Patterns of Cannabis
Use in South Australia"). The net-widening is likely to be related to
changes in SA Police procedures relating to detecting minor cannabis
offences, such that more operational police are available for this work,
and the work involved in issuing a CEN will be much less than that
required under a prohibition model, where more formal prosecution
procedures must be undertaken. It may also be related partly to a shift
from greater use of police discretion in giving cautions for some minor
cannabis offences to the formal system of issuing CENs for all minor
offences detected.
In the first few years of operation of the CEN scheme, the rate of
expiation of issued CENs was at around 55%. However, as the scheme
continued, and the numbers of CENs issued increased, the rate of
expiation dropped to around 45% in 1991/92, and the rate has remained
close to this level since then. This rate is substantially lower than
for other types of expiable offences, such as traffic infringements. Of
those
CENs which were not expiated, the vast majority were forwarded for
prosecution. No data were available in the present study to allow
assessment of expiation rates after the beginning of 1997, when new
procedures for administering all expiable offences in SA (including
traffic) came into effect.
A relatively small number of CENs which were not expiated (1% of all
CENs issued) were withdrawn before being forwarded for prosecution.
Additional CENs would be withdrawn or dismissed at a later stage in
processing, up to court prosecution, with the total identified as being
around 5%. However, it needs to be highlighted that a further but
undetermined proportion of CEN matters may be left unresolved some time
after court prosecution, because of difficulty in locating the offenders
- some such offenders would have provided false identifying information
at the time of apprehension. The present study was unable to obtain a
reliable estimate of this proportion lost at later stages of processing;
however, it might be assumed that a substantial number of those matters
involving false identifying information would have been withdrawn
prior to or during the prosecution process ( thus contributing to the %5
identified as having been withdrawn).
The data do not provide clear answers as to why the rate of expiation of
CEN offences has been as low as it has. However, it may well be due
to financial hardship experienced by cannabis offenders, particularly
younger offenders and those who may have received multiple CENs over
time. Also, as it is probably more difficult for police to verify proof
of identity at the time a CEN is issued to an offender, compared to
other
types of offence (eg. traffic offences, where registration information
can be used for follow-up) there may be more CEN matters lost to
follow-up.
The most common offence for which CENs have been issued is possession of
equipment for using cannabis, accounting for 38.4% of all
CENs issued between 1991/92 and 1995/96. Possession of less than 25
grams of cannabis accounted for a further 36.4% of CENs issued.
When possession of up to 100 grams of cannabis and up to 20 grams of
cannabis resin are included, all possession offences accounted for
41.4% of all CENs issued. Cultivation of up to 10 plants accounted for
19.9% of CENs issued. For this study, no information was available
on number of plants seized in cultivation offences. Rates of expiation
for the different offence types ranged from about 33% for possession of
equipment offences (where it was the sole offence) to nearly 53% for
cultivation offences. Again, this suggests that cultivation offences are
taken more seriously by offenders. Alternatively, it could be that those
who are detected for cultivation offences are less likely to be
experiencing financial hardship. The rates of expiation for the
different offence types have not varied substantially over the years.
According to available data, 49% of all CENs issued involved single
offences, and a further 40% were issued in a situation involving two
simultaneous CEN offences. Most of these would be equipment offences in
conjunction with another offence. The numbers of
multiple-offence episodes are likely to be under-estimated by the data,
because of inability in some cases to match CEN data records from the
same occasion for the same person.
The average value of an issued CEN is $70.25, while the average value of
CENs expiated is $74.35, and of CENs forwarded for prosecution,
$67.77 (CEN fees generally range between $50 and $150, although a
possession of implements offence, when in conjunction with another
offence, carried a $10 fee). The higher average value for those expiated
suggests that there may be greater recognition among offenders
detected for expiable offences viewed as potentially more serious (eg.
cultivation) that it is in their interests to clear the matter quickly
by
paying expiation fees, rather than letting them lapse and have the
matter go to court.
Overall, between 1991/92 and 1995/96, about 87% of CENs have been issued
to males, and the expiation rates for males and females are
comparable. With respect to age groups, 51% of CENs were issued to
offenders aged 18 to 24 years, 90% of whom were males. With
increasing age level, the rate of expiation increased, from around 43%
for 18 to 24 year olds, to 65% for offenders aged 45 years and above.
According to the legislative requirements of the CEN scheme, CENs can
not be issued to persons under 18 years of age. A small number of
CENs, accounting for 1% overall, were issued to offenders under 18 years
of age. It is unclear whether these were issued in error, or whether
age information has been incorrectly recorded (around 68% of these are
later withdrawn).
The issuing of CENs showed some geographical variation, with the highest
rates of issuing occurring in the inner city area of Adelaide, Port
Adelaide, the inner northern suburbs of Blair Athol and Kilburn, and the
far southern suburb of Sellicks Beach. In general, the far northern
and southern suburbs, as well as the inner western, northern and north
western suburbs had the highest CEN issuing rates, as well as the
highest absolute numbers of CENs issued.
Cultivation offences account for a larger proportion of CENs issued
among older age groups. Only 12% of CENs issued to 18 to 24 year olds
are for cultivation, whereas 56% of CENs issued to persons 45 years and
older were for cultivation. While the absolute number of cultivation
offences is not the greatest for the 45 years and older group, the
higher proportions of cultivation offences among older offenders may
reflect
a group of people who have remained involved with a cannabis subculture,
are perhaps more heavy users, and are more serious about growing
cannabis for their own use.
There is some variation in the number of CENs issued by day of week,
with the greatest numbers being issued on Fridays, Saturdays and
Sundays. When CEN issuing is examined by month, a much greater degree of
variability becomes evident. There is a twofold variation
annually in numbers of CENs issued, between the period around July to
October when it is lowest, to around March in each year, when CEN
issuing is highest. This clearly coincides with the period when cannabis
in cultivation would be reaching maturity and being harvested. When
the monthly pattern of CEN issuing was broken down by offence type,
cultivation offences by far showed the greatest variation; for the total
period 1991/92 to 1995/96, there were 420 minor cultivation offences
detected in the month of July, compared with a peak of 2,886 cultivation
offences in the month of March.
Among the CENs withdrawn before being expiated or forwarded for
prosecution, the offence of possessing equipment for using cannabis is
over-represented, while cultivation offences are under-represented. This
suggests that, after issuing CENs for equipment offences, police may
find it more difficult to sustain a charge if the matter proceeds to
prosecution, perhaps because of doubts about whether the equipment had
in
fact been used for consuming cannabis. On the other hand, it may be
relatively easier for police to ensure that a cultivation offence is
brought
to completion, perhaps because of a greater perceived level of
seriousness attached to this offence.
Most matters involving unpaid CENs which are prosecuted result in a
conviction being issued by the court; the proportion has remained fairly
constant, and has ranged from 88% in 1995/96 to 94% in 1993/94. Overall,
there have been 37,470 convictions issued for unpaid CENs,
accounting for 46% of the total number of CENs issued. In contrast, only
about 2% of CENs prosecuted (or 1% of the total issued) resulted
in no conviction being recorded. It should be pointed out that an
unknown proportion of these convictions would be in cases where the
offender had given false identifying information, and in such cases, the
offender may have thereby avoided legal sanction for non-payment of a
CEN. Most of those who receive conviction for failure to expiate CEN
fees would receive a court-imposed fine of similar magnitude to the
original expiation fee, with the addition of court costs and levies
(which would add about $100 to the amount payable).
Of unpaid CENs forwarded for prosecution, about 3% were withdrawn prior
to charges being laid. This represents a further 2% of all CENs
issued, in addition to the 1% withdrawn or cancelled before being
forwarded. Once charges have been laid, some unpaid CEN matters may
still be withdrawn, either prior to or as a result of a court hearing. This
accounts for a further 2% of all CENs issued. Thus, in total, around 5%
of all CENs issued are formally recorded as having been withdrawn,
dismissed or cancelled. There are unknown numbers which may have been
cancelled at a later stage, through loss to follow-up. The statistics
utilised for the present study provided data on court outcomes, but no
information was available on the extent to which court-imposed penalties
were successfully completed. Thus, of those convicted for failure to
pay expiation fees, it could not be determined how many would have paid
their court-imposed penalties, or have had warrants issued for failure
to pay fines. The loss to follow-up at these later stages could not be
ascertained.
In addition, while community service was very rarely imposed by the
court as a penalty in CEN fee default cases (less than 1%), there may
have been greater numbers who had court-imposed fines converted to
community service orders at a later date, but the extent to which this
occurred could not be obtained from the data available for this study.
This extends to the numbers of CEN offenders who might eventually
receive imprisonment for failure to expiate a CEN and then fail to pay
subsequent court fines; while this number is likely to be very small, it
could not be obtained for this study.
Some analysis of repeat offending under the CEN system was undertaken.
The findings must be interpreted cautiously, as difficulties were
encountered in matching records from individuals who night have offended
on separate occasions; for this study identification of repeat
offenders required matching of records based on name and date of birth.
If this information varied in any way across time, matching could not
be done. Thus, it is likely that the information on extent of repeat
offending under-estimates the true amount, but the degree to which this
is so could not be determined. The giving of false identifying information by
offenders, as well as data entry errors or mis-spellings in recording
names, could have contributed to under-estimating the degree of repeat
offending.
Around 8-9% of all CENs issued in any given year were to offenders who
had received two CENs in that year. When the five year period
from 1991/92 to 1995/96 was considered, the number of offenders with two
separate CENs issued was 5,304, representing 10,608 offences, or
13% of all CENs issued over the period. Within the same five year span,
there were 1,470 offenders identified who had been issued three
CENs. The numbers of offenders who had greater than three CENs issued
over the five years decreased markedly as the number of repeat
offences increased. Very few offenders were identified as having more
than ten CEN offences within the five years. Overall, 7,730 repeat
offenders accounted for a total of 19,765 offences for which CENs were
issued over the five year analysis period, representing 24% of all
CENs issued.
While the overall proportions of CENs expiated and forwarded for
prosecution due to non-payment have remained roughly equal over time,
the repeat offender data show that repeat offenders feature more
prominently among those who failed to pay expiation fines. For the five
year analysis period, there were 2,256 repeat offenders identified among CENs
expiated, accounting for 5,039 offences. The average number of
repeat offences per offender was 2.2 for the expiator group. In
contrast, among the prosecuted group, there were 4,468 repeat offender
accounting for 11,747 offences, with an average of 2.6 offences per
offender. Thus, it would appear that a greater load of matters forwarded
for prosecution is comprised of a smaller number of offenders who repeatedly
fail to expiate CEN fees. While a detailed demographic profile of
this group could not be generated from the data available for this study
(which was limited to information recorded on CEN forms), one would
expect that the repeat offenders who are prosecuted are experiencing a
greater degree of financial hardship, and may have other social
problems, some of which may be related to greater levels of cannabis
use, all of which could reduce the likelihood of them clearing expiation
fees and court-imposed fines.
Study No. 2: Cannabis Offenders in The Western Australian Criminal
Justice System 1993-1995
This report provides statistical information on the processing of
persons charged with cannabis related offences through the criminal
justice system in Western Australia (WA) for the period 1994 to 1996. The
analyses represent an extension of those conducted for the first phase
of the Cannabis Social Impact study, which covered the period 1990 to 1993
(Lenton, 1995; Lenton, Ferrante and Loh, 1996).
Arrest data
From 1994 to 1996 there were 23,898 cannabis related charges in Western
Australia, which were brought against 9,240 persons. These
comprised 12% of all charges issued and 82% of all drug charges, down
from 89% in the period 1990?1993. Just under half (46%) of the
cannabis charges were for possession/use, 33% were for possession of
implements, 10% were for make/grow offences, and 7% were for
trafficking. The proportion of possession and use charges which were
cannabis related declined from 90% in 1990 to 71% in 1996. This was
likely due to a growth in the use of other drugs over the period. During
1996, for 13% of the apprehensions or arrests for possession/use of
cannabis, the person was held in custody prior to their court hearing.
The majority of cannabis possession/use offences from 1994 to 1996 were
committed by males (85%), non-Aboriginals (93%), and adults
(92%). Juveniles comprised a slightly larger proportion (10%) of those
arrested for a possessing a smoking implement than for possession of
cannabis itself (8%). Young adults (18 to 21 years of age) comprise 28%
of all possession/use cannabis charges.
From 1990 to 1995 there were 12,913 distinct persons charged with
cannabis possession and use as their most serious offence, and for 44%
of these this was their first arrest. Women comprised 23% of first-time
arrestees, Aboriginals 2% and juveniles 13%. From 1990 to 1995, 9%
of first time arrestees charged with cannabis possession/use as their
most serious offence were held in custody prior to appearing in court,
but this decreased from 16% in 1990 to 5% in 1995. Twelve months after
initial arrest, 11% of first time arrestees charged with cannabis
possession/use as most serious offence had been re-arrested. By 24
months this figure had risen to 28%, and by 36 months was 30%. As at
31 December 1995, 59% of first-time cannabis users arrested in 1990 had
not been re-arrested for any offence. Data aggregated for the period
1984 to 1996 suggests that the majority of most serious second offences
committed by those first time arrestees charged with possession/use
cannabis are relatively minor, 25% being driving a vehicle under the
influence of alcohol or drugs, 18% for another possess/use cannabis
offence, 4% for other minor drug offences and 4% for make/grow cannabis.
Younger first-time cannabis users were more likely to be
re-arrested than older offenders.
Court data
There were 22,247 cannabis related charges finalised in the lower court
over the period 1993 to 1995, which comprised 9% of all charges and
84% of all drug charges finalised in the lower court. In 1995, just
under half (47%) of the cannabis charges finalised were for
possession/use, and 32% were for possession of implements, which respectively comprised
51% and 18% of distinct persons appearing before the lower court
on cannabis-related charges. The vast majority (99%) of possession/use
charges finalised from 1993 to 1995 resulted in a conviction, and of
these, 92% resulted in a fine and 1% resulted in a custodial sentence.
Over the period 1993 to 1995 males were responsible for 85% of all
possession/use charges finalised in the lower court and Aboriginals only
6%. One in six (16%) of possession/use charges heard in the lower
courts were against 18 to 20 year olds, with 75% of adults so charged
being under 30 years of age.
There has been a decrease in the number of people jailed as a result of
fine defaulting, where the offender's most serious offence was
possession and use of cannabis. For example, in 1994 41 of the 43 who
were jailed with possession and use of cannabis as their most serious
offence were jailed for fine default. In 1996 there were 3 such persons
jailed, one of which was for fine default. This change appears to have
occurred due to the introduction in WA of the Fines Enforcement System
for non-payment of fines, where those who do not pay fines can
have goods seized, complete a community penalty or have their motor
drivers licence suspended rather than be placed in custody.
Study No. 3: Comparison of the Impact of Civil Penalties for Minor
Cannabis Offences With the Impact of Conviction: the Cannabis
Offender Interview Study
This study involved interviews with samples of cannabis offenders from
South Australia and Western Australia. The findings of this study
component are presented in three parts: two separate summaries of the
findings from the South Australian and Western Australian samples
respectively, and a summary of the comparative analyses that were
conducted on the combined SA and WA data.
1. Interviews with South Australian offenders under the CEN scheme
The majority of the 202 respondents recruited for this study were
Australian, non-aboriginal males in their twenties. Most were single,
had no
children, and lived with their partners, family or friends. The majority
were heavy users of cannabis, although there was only a small degree of
other drug use (excluding alcohol). In this sample it appeared that
cannabis use was not indicative of poly-drug use. There were significant
differences in rates of use between those who had received a CEN (n=133)
and those who did not (n=69). Approximately seventy percent of
respondents who had received a CEN used cannabis on a daily basis,
compared with fifty percent of respondents who had not received a CEN.
Accordingly, heavier use of cannabis may be a risk factor for receiving
a CEN.
It appears that the sample used for this study was biased towards
heavier users of cannabis, which may be due to the recruitment methods
employed. That is, advertisements were not placed in mainstream media,
but rather community and street magazines, and university flyers.
Furthermore, those who expiated their CENs were the most difficult to
recruit, which may in part be due to the recruitment methods employed.
It is possible that 'expiators' as a group are less involved in a
cannabis-using subculture than 'non-expiators', and less likely to wish
to talk about their cannabis offences.
The main source of supply of cannabis for seventy five percent of the
sample was a third party, whereas twenty five percent reported their
main source was cultivation of their own plants. Twenty percent both grew and
purchased cannabis. Of those that grew and had sold cannabis (45%
of the total sample), eighty percent said that the profit contributed to
between one and twenty five percent of their income, suggesting that
most people were growing for personal use, including family and friends,
rather than commercially.
Two thirds of respondents were issued their CENs in a public place, the
remainder in a private residence. Privately apprehended respondents
were most likely to receive their CENs for possession of cannabis and
cultivation. Moreover, it appeared police were aware that cannabis was
on the property prior to the apprehension. In contrast, apprehension
occurring in public places tended to be random and appeared to be
opportunistic. These respondents were most likely to receive CENs for
possession of cannabis and/or implements for using cannabis.
Of those who had dry cannabis seized, seventy five percent were found
with three grams or less (an average J-bag). Of those who were
apprehended for cultivation, fifty percent had five or fewer plants, and
seventy percent had ten or fewer plants. Once again, this suggests that
the majority of these users were not involved in commercial criminal
activity, and were more likely to possess or cultivate cannabis for
personal use. It is possible that some respondents may have been involved in sale
and supply of cannabis from cultivation of an expiable number of
plants, thereby exploiting the CEN scheme. A modification to the current
penalty scheme for cannabis may be advantageous, incorporating a
'graded' penalty scale for possession of both wet and dry cannabis.
Seventy five percent of respondents who were issued CENs felt that
police had been 'reasonable' to some degree when the CEN was issued,
however there were some complaints about police behaviour. Overall,
eighty percent reported that their attitude towards the police had not
changed as a result of the CEN incident. Of those who reported a change
in attitude, the net change tended to be in a negative, rather than
positive direction.
Respondents who had expiated mostly reported that they did so to avoid
court and a criminal record. The majority of respondents who failed
to expiate reported that it was because of financial constraint.
Similarly, many of the respondents who did not expiate, underestimated
the amount they would ultimately have to pay. Their costs were significantly
greater than the expiators due to heavier fines and court costs. In
addition, three quarters of the non-expiators were not aware that they
would get a criminal record if they did not expiate, suggesting that
those who expiated may have had a better understanding of the consequences of
not expiating.
There was no change in the rate of cannabis or other drug use following
respondents' receipt of CENs. This suggests that receiving a CEN
does not deter continued cannabis use, although as mentioned earlier,
this sample seems to be biased towards heavier users of cannabis who
may have been more resistant to change. Most respondents said they
continued using cannabis because they enjoyed it, and did not view its
illegality or criminal status as important.
In the time between receiving their CEN and the study interview,
respondents appeared to be actively involved in looking for work. This
suggests that neither their cannabis use, or their CEN, had a negative
effect on seeking employment. The majority of respondents reported that
receiving a CEN had no major effect on maintaining their employment,
although a small proportion (around five percent) thought they may
have lost their job because their employer found out about their CEN.
There is some suggestion that some CEN offenders may have
incorrectly thought that they had to include CEN offences when providing
information about their criminal history to prospective employers.
In general, receiving a CEN did not appear to have a negative impact on
employment.
Over half of all respondents interviewed said that paying the CEN had
caused them financial hardship. Moreover, the majority felt the fine
they
received was unreasonable, unjust, too harsh and did not match the
seriousness of their offence. They also reported that they believed
decriminalisation of cannabis had not resulted in an increase of
cannabis use, and thought that personal use should be legal. Respondents
also
believed that strong drug laws do not deter illicit drug use.
Overall, most of these respondents were law-abiding, apart from their
cannabis use. They did not view personal cannabis use as criminal or
illegal, although over half believed that commercial sale and supply of
cannabis should be a criminal offence.
Many of the respondents had erroneous beliefs concerning the law and
cannabis. Around one half thought that private use was legal, while one
third believed that possession of cannabis (100 grams or less) was also
legal. Approximately two thirds knew that paying a CEN would not
result in a criminal record, although two thirds were also unaware that
they would get a criminal record if the fine were not paid by the due
date. Moreover, two thirds were not aware that the result of not
expiating would be a court summons and additional court costs.
2. The social impact of a minor cannabis offence under strict
prohibition - the case of Western Australia
Sixty-eight Western Australians who received a criminal record not more
than 10 years ago as a result of a conviction for a simple (minor)
cannabis offence were interviewed for approximately 2 hours to ascertain
their experiences of the arrest and court process and its subsequent
impact on their lives.
The sample was 72% male, and the average age at interview was 27.4
years. Three quarters of the sample said they were in employment of
some kind. On average respondents had been using cannabis for 11.4
years, and 82% had used the drug in the four weeks prior to interview.
Most had friends who used cannabis. On average respondents were
interviewed about four years after their conviction. The sample was
comparable in terms of sex and age at arrest with the population of West
Australians convicted of cannabis possession and use as their first
and most serious offence.
Average age at arrest was 22.7 years. When arrested 47% were in a
private dwelling, 25% were in a vehicle and 18% were in a public place.
Most (71%) were charged with possession of cannabis, 53% with possession
of a smoking implement and 23% with minor cultivation
offences. Half were under the influence of cannabis when arrested.
While 73% said that police were lawful during the arrest and 41% said
that they were respectful, 33% said that police were hostile and 57%
were intimidated by police during the incident. In most cases attitudes
towards the police were not changed by the incident, however, a large
minority of respondents said that they developed less favourable
attitudes. For example, 49% were less trusting of police and 40% were
less
respectful of police as a result of the incident
The vast majority (87%) of the sample said the arrest and conviction had
not resulted in them reducing their use of cannabis, 18% were more
discreet about their use. Only three respondents said that they stopped
smoking for fear of another conviction, Four had stopped using for
other reasons, and two said that they defiantly smoked more as a
consequence of their conviction. Most continued to use despite their
conviction because they enjoyed it (62%), didn't see it as a criminal
activity (41%), saw it as a victimless (25%), or disagreed with the
cannabis
laws (22%).
The majority of respondents were law abiding and had respect for the law
and police in general, but not for the cannabis laws and their
enforcement by police. The vast majority (85%) believed that police
deserve respect for maintaining law and order, 88% believed that they
were
a law abiding person, and 81% believed that most laws are worth obeying.
Yet 90% believed that cannabis use should be legal, and 84% did
not believe that strong drug laws deter illicit drug use. A minority
(21%) continued to see themselves as a criminal as a result of their
cannabis
conviction.
Most (78%) of the sample regarded cannabis as a safe drug, and 82% did
not believe that cannabis decriminalisation would markedly increase
the number of people using the drug. Most saw cannabis as less harmful
than alcohol (87%) and tobacco (69%).
Most (87%) had made at least one job application since conviction and
76% of these had been asked by a prospective employer whether they
had a criminal record. A third (32%) had at least one negative
employment consequence related to their cannabis conviction. Nineteen
percent
were unsuccessful in at least one job application, 16% said that they
had lost at least one job, and 9% had stopped applying for some jobs as
a
result.
One in five (20%) respondents identified at least one negative
relationship event which they believed was related to their cannabis
conviction.
Family disputes (16%) were the most common negative relationship
consequence, followed by stress in a primary relationship (6%). Eleven
(16%) identified at least one negative impact on their accommodation.
Eight (12%) changed their accommodation as a result of the conviction,
three losing work-provided accommodation when they lost their jobs as a
result of the conviction.
A third (32%) identified at least one negative involvement with the
criminal justice system related to their cannabis conviction. In 19% of
cases
respondents believed their criminal record led to further enquiries from
police.
Only 7% identified at least one negative impact of their cannabis
conviction on their capacity to travel overseas. Three had a visa
application to
Canada or the USA rejected one was interrogated at the Canadian border,
and another cancelled their trip. A further 9% were very concerned
about future restrictions on travel. It appeared that the time from
conviction to interview was too short for travel effects to be evident
in a larger
number of respondents.
3. Infringement versus Conviction: The Social Impacts of a Minor
Cannabis Offence Under a Civil Penalties System and Strict Prohibition
in Two Australian States
Sixty-eight South Australians who had received a cannabis expiation
notice (CEN) and the same number of West Australians who received a
criminal record not more than 10 years ago as a result of a conviction
for a simple (minor) cannabis offence were interviewed for
approximately 2 hours to compare their experiences of the CEN and/or
conviction, and their subsequent impact on their lives.
Despite their transgression of the cannabis laws, the majority of both
groups saw themselves as largely law abiding and had respect for the
role
of police as law enforcers and the rule of law in general. The majority
of both groups also shared a lack of support for punitive drug laws, had
a high level of support for cannabis use being legal, and slightly more
than a third of each group supported commercial supply of cannabis
remaining illegal.
The majority of both groups had positive views regarding cannabis. Most
thought that it was a safe drug and that the benefits of cannabis
outweighed the harms. Most saw it as much less harmful than a range of
other substances including alcohol and tobacco.
Seventy-five percent of the WA group and 41% of the SA expiator group
stated that the reason for police attention was that they were
suspicious that the respondents were in possession of cannabis.
Thirty-six percent of the WA group and 8% of the SA expiator group said
that police had a search warrant at the time of apprehension, 49% of the
WA sample compared to 19% of the SA expiator group said they were
in a private dwelling when they were apprehended by police.
Respondents in both groups were equally likely to report that they were
friendly, respectful and cooperative toward the police when they were
arrested or issued with their CEN. But 49% of the WA group, compared to
only 18% of the expiators, said that they had become less trusting
of police, and 43% of the WA group, compared to 15% of the SA expiators,
were more fearful of police as a result. The greater loss of trust in
the WA sample appeared in part due to the greater number of that group
who were apprehended in a private residence, but did not appear to be
due to other possible confounders.
The WA group were more likely to report negative employment
consequences. While 32% of WA respondents identified at least one
negative
employment consequence related to their cannabis conviction, only one
(2%) of the expiators identified one consequence that was related to
their CEN. This difference did not appear due to possible confounders.
Only one SA expiator believed that they had lost a job because of their
CEN. Nineteen percent of the WA group said they had not got at least one
job applied for, 16% had been sacked from at least one job, and 9%
had stopped applying for jobs when they believed or knew that they were
likely to be asked whether they had a criminal record. On average
employment consequences for the WA group occurred 8 months after
conviction.
There was a significant difference between the groups in terms of
negative relationship consequences of conviction or CEN. Only 5% of the
SA expiator group identified any negative relationship consequences of
their CEN, while 20% of the WA group identified at least one negative
relationship event related to their cannabis conviction. This result
appeared in part due to the greater number of the WA group who were
apprehended in a private residence, but was not due to other possible
confounders. Among the expiators 3% described family disputes, and
2% said a friendship ended as a result. Among the WA group 16%
identified family disputes, 6% stress in a primary relationship and 3%
family estrangement. The first relationship consequence occurred, on
average, 8 months after the CEN and 5 months after the arrest.
There was a significant difference between the groups in terms of
negative accommodation consequences of conviction or CEN. None of the
respondents in the SA expiator group identified any negative
accommodation consequences but 16% of the WA sample did so. These
included a change of accommodation (12%), loss of work accommodation
(4%) associated with loss of job due to the conviction. Once again,
accommodation differences appeared related to the impact of arrests
which took place in a private residence which occurred in a greater
number of cases in the WA sample, but did not appear to be due to other
possible confounders. Residential consequences occurred on average
3 months after conviction.
There were no differences between the SA expiator and WA groups
regarding the extent to which they, or others who knew them, saw
themselves as a criminal as a result of the incident. In both groups,
only a minority said they saw themselves as a criminal as a result of
the
incident.
There were no significant differences between the groups regarding the
impact of the CEN or conviction on respondents drug use. Both the
CEN and the cannabis conviction appeared to have very little impact on
subsequent use. For example, 91% of the SA expiator group and 71%
of the WA group said that their cannabis use was not at all affected by
their apprehension one month after. The vast majority of each group
said that if they were caught again they would not stop using the drug.
These data suggest the application of the civil or criminal law did not
reduce the cannabis use of the vast majority of this sample.
There was a difference between the groups regarding subsequent criminal
justice consequences and this did not appear to be due to possible
confounders. Although none of the respondents in the SA expiator group
identified any negative episodes of involvement with the criminal
justice system which they thought were in some way related to their CEN,
32% of the WA sample identified at least one such consequence
related to their conviction. These included further police enquiries or
questioning (19%) being found guilty of a non-cannabis related offence
(13%) or another minor cannabis offence (9%). On average these
consequences occurred 14 months after conviction. It may be that such
events are a result of the computer access to offenders records that the
WA police have, rather than the conviction per se.
There was no significant difference between the groups in terms of
negative travel effects of conviction or CEN. None of the expiators and
five
of the WA sample (7%) identified at least one negative travel
consequence and a further 9% of the WA group were very concerned about
this
possibility in the future. It appeared that the time from apprehension
to interview may not have been long enough for travel effects to be
evident
in a large enough number of the convicted sample to result in a
significant result as 41% of the WA sample were interviewed within 38
months
of conviction, yet the average duration to the first travel consequence
was 39 months.
Study No. 4: Survey of Peak Employer Groups: Comparison of Impacts of
Minor Cannabis Offences on Employment in South Australia and
Western Australia
Review of the literature on previous research relating to employer
groups' attitudes, practices and policies with regard to cannabis use
and
cannabis offending among existing or prospective employees revealed that
very little has been published on this issue. Australian research
conducted on cannabis in the workplace has focused solely on determining
the prevalence of use (usually outside of work hours).
A telephone survey was conducted of a sample of representative employers
who are prominent or leading organisations in their respective
industry, to examine whether a minor cannabis conviction is an
employment issue for peak employers. Separate samples were drawn from
South Australia (an example of a jurisdiction with a "civil penalty"
approach to minor cannabis offences) and Western Australia (an example
of a total prohibition approach). It was surmised that there may be
differences in the extent of employer discrimination against cannabis
users
and/or offenders between these states, precisely because of the
differing legal systems.
Fifty South Australian (SA) employers and forty Western Australian (WA)
employers from a diversity of industrial groups participated in the
telephone survey. There were differences between the two samples in the
types of industries represented, with the Western Australian sample
having a higher proportion of mining organisations in the sample. It
needs to be highlighted that the samples of employers are likely to
over-represent large employers and under-represent smaller employers.
Furthermore, a potential for bias exists, in that non-respondents to the
survey may have differing attitudes to cannabis use than those employers
who were interviewed.
A high proportion of the SA and WA samples had a formal policy on
alcohol and other drugs (AOD), were attached to an employee assistance
program (EAP), had an occupational health and safety committee or
representative, and reported having had a workplace AOD incident in the
few years prior to the interview.
Less than half of the SA and WA employers requested job applicants to
specify any criminal offences, and even less conducted a formal
criminal record check. Not a single organisation that conducted a record
check, or requested job applicants to report a criminal record, reported
that they ever checked specifically for a minor cannabis conviction.
Employers across both states demonstrated a moderate degree of knowledge
of their respective state's minor cannabis laws, and there were no
differences between the state samples in this regard. Employers in both
states had similar views overall about how severe the laws and penalties
for minor cannabis offences in the community should be, with a
substantial proportion of all employers stating that the personal use of
cannabis should be illegal but not a criminal offence.
Responses to a series of hypothetical situations were consistent with
employers' opinions about their state's minor cannabis laws. Employers
reported a lesser propensity to discriminate against a job applicant
with a minor cannabis conviction compared to a job applicant with a
major
criminal offence record (eg. involving cannabis dealing, assault, or car
theft). There were few state differences in responses to these
hypothetical situations. Around half of all employers also suggested
that they would not take action if they heard through the grapevine that
a
member of staff had committed a minor cannabis offence outside of work
hours, with the reason frequently given that an employee's private
life was of no concern to the organisation when it involved the personal
use of cannabis.
In conclusion, important findings arising from this study are:
employers, on the whole, appeared less likely to discriminate
against an employee or job applicant with a minor cannabis offence or
conviction compared to a person with a more serious criminal
conviction;
there were no marked differences between an "expiation state"
(SA) and a "prohibition state" (WA) in terms of the reported attitudes
and practices of employers with regard to minor cannabis use and
offending among employees and job applicants;
there was a substantially greater degree of concern amongst
employers interviewed in both states about potential intoxication with
cannabis in the workplace, and the associated safety
implications;
overall, respondent employers located in two states with
different legislative systems for minor cannabis offences did not
perceive
such offences among employees as a significant employment issue.
Study No. 5: Effects of the CEN Scheme on Levels and Patterns of
Cannabis Use in South Australia
Between 1985 and 1995, the adjusted prevalence rates of ever having used
cannabis increased in SA from 26% to 36%. There were also
significant increases in Victoria (from 26% to 32%), Tasmania (from 21%
to 33%) and New South Wales (from 26% to 33%). The increase
in South Australia was significantly greater than the average increase
throughout the rest of Australia. The remaining states, however,
differed
in rates of change, with Victoria and Tasmania having similar rates of
increase to South Australia. There was no statistically significant
difference between SA and the rest of Australia in the rate of increase
in weekly cannabis use. The largest increase in weekly cannabis use
occurred in Tasmania between 1991 and 1995, where it increased from 2%
to 7%.
South Australia also did not show a greater rate of change than the rest
of Australia in lifetime cannabis use among young adults in the 14 to
29 year age group, the age group with the highest rates of initiation of
cannabis use.
The survey data indicate there has been a greater increase in
self-reported lifetime cannabis use in South Australia between 1985 and
1995 than
in the average of the other Australian states and territories. However,
this increase is unlikely to be due to the CEN system because: (1)
similar
increases occurred in Tasmania and Victoria, where there was no change
in the legal status of cannabis use; (2) there was no differential
change in weekly cannabis use in South Australia as compared with the
rest of Australia, and (3) there was no greater increase in cannabis use
among young adults aged 14 to 29 years in South Australia.
Study No. 6: Public Awareness, Knowledge and Attitudes Regarding the CEN
Scheme in South Australia
Of a sample of 605 residents of South Australia interviewed via
telephone survey, 39% reported ever having used cannabis, and 34%
reported
having the opportunity to use cannabis in the previous 12 months. These
percentages were higher than reported in the earlier 1995 National
Drug Household Survey (CDH&FS, 1996). However, more regular consumption
of cannabis, defined as use within the previous 12 months,
was no greater than found in the 1995 survey, with approximately one
third of those who had ever used doing so in the prior 12 months.
The fortnightly use of cannabis was viewed as acceptable by 34% of the
sample, compared to less than 5% who thought the monthly use of
other illicit drugs was acceptable. Nonetheless, the majority of
respondents (77%) believed that cannabis is associated with health
problems
and with social problems (71%). Twenty two percent believed cannabis was
associated with some health benefits and 70% felt that it had some
legitimate medical uses. The risks associated with cannabis use were
perceived to increase with the frequency of use, with 65% stating that
daily use was associated with a "great risk". Furthermore, 57% of
respondents believed cannabis to be very or moderately addictive.
Despite these views, 65% of the sample felt that many people use
cannabis without experiencing serious problems, and roughly 50% felt
that
cannabis use did not necessarily lead to the use of other illicit drugs.
Teenage use was disapproved of by 77% of the sample, while 90% agreed
that driving ability would be diminished if the driver was affected by
cannabis.
Positive attitudes towards the use of cannabis were associated with ever
having used cannabis, continuing to use cannabis, being acquainted
with cannabis users, and being categorised as having voted left-wing in
the last state election. Youth, residence in the metropolitan area,
post-secondary education and drinking alcohol at least once a week were
less consistently associated with positive attitudes toward cannabis.
Whereas only 17% of respondents knew of the "CEN scheme", 76% expressed
a familiarity with the "on-the-spot fine scheme". A reasonable
knowledge of the legal status of the non-expiable offences (that is,
that they are illegal) contrasted with some confusion about the legal
status
of expiable offences, with 24% thinking that possession of less than 100
grams of cannabis was legal, and 53% believing that growing 3 plants
was legal. A large percentage of respondents said that they did not know
the legal status of each of these offences.
This confusion was further highlighted when respondents were asked about
the consequences of offences: only 40% knew that the two
expiable offences involved some legal consequence. A higher percentage
knew that the non-expiable offences involved some legal
consequence. Only 3.3% of the sample had received a CEN.
While 80% felt that using cannabis for medical purposes should be legal,
the vast majority thought that growing 15 plants, selling 25 grams
for profit, possession of less than 100 grams by a juvenile and driving
while affected by cannabis should remain illegal. Opinion was evenly
divided as to whether the expiable offences of possessing of less than
100 grams of cannabis or growing 3 cannabis plants should be legal.
Those having no religious commitment, having used cannabis or continuing
to use cannabis, and using alcohol at least once a week were found
to be more liberal in their attitudes towards the legal status of
cannabis. However, even among those supporting the continued illegal
status of
cannabis-related activities, the majority felt that a fine was the
appropriate penalty for currently defined expiable minor offences.
On the question of whether respondents would wish to maintain the CEN
scheme, render it more lenient or make it more restrictive, 43% were
in favour of the status quo, 38% favoured making it stricter and 14%
were in favour of making it more lenient. Those who believed either that
the law should remain the same or become less strict were more likely
than those who felt it should be more strict to have ever used cannabis,
to continue to use cannabis at least once a year or to consider religion
unimportant to their everyday life.
Of particular interest were the perceptions of the consequences of CEN.
Whereas 40% felt that the level of other drug use in the general
community had increased, 43% felt that the level of cannabis use in the
general community had remained the same, and 32% felt that its use in
public places had remained the same. Forty seven percent however felt
that the level of cannabis use by teenagers had increased.
Respondents were equally divided as to whether or not they thought that
public education might deter cannabis use. However, 69% of the
sample disagreed with the idea that public education would promote
cannabis use.
Of the respondents surveyed, 78% agreed with a suggestion to reduce the
maximum number of plants for which a CEN could be issued from
10 to 3.
As was found to be the case in relation to the use of cannabis, more
liberal attitudes toward cannabis-related laws were found to be
associated
with ever having used cannabis, continuing to use at least once a year,
knowing someone who uses, expressing no religious commitment,
consuming alcohol at least once a week and voting "left-wing" at the
last state election.
While a number of comparisons were made between the results of this
survey and those conducted earlier, the different survey methods
employed, the time period between the surveys and the possibility that
South Australians are more candid in discussing their own drug use
preclude any conclusions being drawn as to whether South Australian use
and attitudes towards use diverge from the national profile.
Study No. 7: Costs Associated with the Operation of the CEN Scheme in
South Australia
The Cannabis Expiation Notice (CEN) scheme in South Australia, as with
all law enforcement schemes, has associated costs and benefits.
Some of those costs and benefits are less tangible than others,
including some of the social impacts which are the focus of the Cannabis
Social
Impacts Study as a whole. It was the aim of this particular study
component to make an attempt to estimate some of the more tangible
monetary costs associated with the operation of the CEN scheme.
These costs to the state include the costs of issuing and processing
CENs through infringement notice procedures regularly used by police,
referral of non-expiated matters for prosecution and court processing,
and the costs associated with enforcing court-imposed penalties for
convicted minor offenders. Costs to the individual offender relate to
the monetary value of the fees, fines and levies associated with
offences
detected, possible legal advice costs, and potential social impacts of
conviction or police intervention upon employment, relationships and
other
areas.
Expenditures by the state have been used as a proxy measure of the
economic costs to society. Fixed costs associated with infrastructure
necessary to operate the law (eg. police stations, court facilities,
etc.) were not included in the cost estimates for the CEN scheme,
because of
the difficulty of quantifying the relatively minor allocation which
would be for the CEN scheme. Expenditure estimates largely involved
personnel time consumed in the tasks of law enforcement and processing
of CEN offences. On-costs were added for personnel costs, but no
allowances were made for maintenance costs or consumables, because of
difficulty in quantifying this factor, and because it was assumed to be
relatively minor.
For the present study, unit cost estimates were developed for a number
of potential penalty outcome pathways under the CEN scheme. Costs
of issuing CENs were estimated from the time a CEN was actually handed
to an offender; no allowance was made for the costs associated with
detecting the offences, as these costs were considered very difficult to
quantify, and subject to wide variation, depending on police resources
targeted at offence detection for minor cannabis offences. Furthermore,
a substantial but unknown proportion of CEN offences would have
been detected opportunistically or in the context of other
investigations, making costing of detection more difficult.
The unit cost of issuing a CEN under the CEN scheme, including police
time in issuing the notice, entering data onto computer, and other
administrative tasks, was estimated to be $32.73. This was also taken to
be the unit cost of a finalised expiated CEN, as handling of full
expiation payments was taken as adding a negligible amount to this cost.
If community service was granted as a payment option before a CEN
became a fine default matter, substantial additional cost was added for
managing the community service order, raising the unit cost to $257.73.
Additional costs were associated with managing CEN matters which
remained unpaid, and had to be prosecuted. For example, a CEN which
was not expiated, and resulted in a court hearing and conviction was
estimated to cost $51.82 form the time of CEN issue to finalisation by
full
payment. If such as case was cleared by community service, the unit cost
was $276.82. If payment of court fines was not made, costs
increased as further criminal justice processing ensued, including the
issuing of warrants. Where non-payment of court-imposed fines resulted
in a warrant being issued, the unit cost for cases which were eventually
payed in full was estimated at $90.75. Where such cases were cleared
via community service, the unit cost was $315.74, and if it was cleared
by imprisonment, the unit cost was $601.74.
A model for the annual cost of the CEN scheme was generated, based on
the figures for the 1995/96 financial year in which 16,321 CENs
were issued, with 7,165 being expiated (a 44% expiation rate). It should
be highlighted that the total cost estimated for the model is based on
approximations of the proportions of offenders within the various final
outcome pathways. Police and court data available for this study related
to processing and initial court-imposed outcomes, ie. they gave no
indication of the proportions of court-imposed fines which were actually
paid, or converted to community service at a later date, or required
warrants being issued and served for non-payment of court fines. Thus,
rough approximations of such outcomes (including imprisonment) were
used. For the purposes of the model comparisons carried out in this
study, these approximations were adequate.
For the 16,321 CENs issued in 1995/96, with a 44% expiation rate, the
total cost was estimated to be $1.24 million. Revenue from CEN fees,
fines and costs was estimated to have been $1.68 million for that year.
Further models were calculated, based on estimated costs for a notional
CEN scheme in which the expiation rate was 10%, 20% and 30%
higher than the 44% observed rate over recent years. With a 10% increase
in expiation rate (ie. to 54%), the total cost was estimated at $1.11
million; with a 20% increase, $0.98 million; and for a 30% increase,
$0.86 million. These models showed clearly that improving the rate of
expiation reduces costs; this is mainly due to the low costs associated
with expiated notices.
When likely revenue from fees, fines and levies for these models is
calculated, the total annual amount declines slightly: $1.60 million for
an
expiation rate of 54%; $1.52 million for a 64% rate; and $1.45 million
for a 74% rate. However, the total surplus of revenue over expenditure
is higher for the higher expiation rates, resulting in greater savings
to the state. It remains unclear the extent to which expiation rates can
be
improved to realise these greater savings. With recent changes to the
way expiation offence fees can be handled (with the implementation of
the Expiation of Offences Act, 1996), expiation rates may increase for
CEN offences, but cost savings may not be realised if community
service is more widely used.
As it was not possible to reliably cost the prohibition approach which
existed in South Australia before the CEN scheme was introduced, and it
was not possible to obtain truly comparable costs from another
jurisdiction which had a total prohibition approach to minor cannabis
offences,
a model was generated which estimated the cost of prohibition of minor
offences in South Australia, had the CEN scheme not been introduced.
In generating this model, allowance was made for net-widening under the
CEN scheme, such that it was assumed that around 7,500 minor
cannabis offences would have been detected in SA in the 1995/96
financial year, rather than the 16,321 CEN offences detected. Even with
this
allowance, the total cost of the prohibition approach was estimated to
be $2.01 million, while revenue from fines and levies was estimated to
be
$1.0 million. These models suggest that an expiation scheme such as the
CEN scheme, even with a relatively low rate of expiation, has much
greater potential for cost savings to the state than does a prohibition
scheme for minor cannabis offenders.
Study No. 8: A Review of Law Enforcement and Other Criminal Justice
Attitudes, Policies and Practices Regarding Cannabis and Cannabis
Laws in South Australia
Through twenty-eight intensive one-to-one interviews and four focus
group discussions, the research team obtained intensive feedback from
forty-nine people involved in administration of South Australia's
cannabis laws. Respondents included the Chief Justice, the Chief
Magistrate,
a representative from the Office of the Director of Public Prosecutions,
the National Crime Authority, police prosecutors, the officer in charge
of the Drug Task Force, Drug Task Force and regional detectives and
police patrol officers. Discussions also were held with personnel in the
Correctional Services and Attorney-General's Departments.
Major findings are as follows.
1.Should South Australia retain the CEN scheme or revert to
prosecuting minor cannabis offenders?
Virtually all respondents considered that it would be better for South
Australia to continue to issue expiation notices for minor cannabis
offences rather than to revert to a system of prosecutions. Reasons for
maintaining this view differed, however. Police, who constituted the
majority of interviewees, put emphasis on the convenience and
cost-effectiveness of CENS. Issuing a CEN eliminated time spent on court
attendance, and also significantly reduced administrative burdens
associated with storage of court exhibits. Individual users still could
be
deterred from cannabis use by being given CEN on several different
occasions for repeat offences.
By contrast, members of the judiciary and others respondents working
outside the enforcement system tended to favour expiation because it
provided a way for users to avoid stigma and other adverse social
consequences associated with a court conviction.
2.Was the CEN scheme having any unintended consequences?
Respondents agreed that expiation had improved police and court
efficiency. However quite a number of police argued that there also had
been
some unintended consequences. In particular, Drug Task Force and
regional detectives argued that individuals and syndicates may be
exploiting provisions which specified that cultivation of up to ten
plants should be dealt with by means of an expiation notice. In their
view, the
advent of hydroponics and techniques for cloning female plants meant
that it was possible for commercial crops to be grown, while staying
within the ten plant limit. Some respondents argued that organised crime
had become involved in coordinating small scale cultivations. When
requested, the Police Department and the National Crime Authority
produced some intelligence evidence that this was occurring. The
Director
of Public Prosecution's office confirmed that it would be difficult to
prosecute successfully individuals or groups conspiring to exploit the
CENS system by organising small cultivations in several different
locations.
3.Did aspects of the CEN legislation and regulations now needed to
be amended?
Respondents who were members of the judiciary or from the Office of the
Director of Public Prosecutions could not see any cause for major
change to legislation or regulations relating to the CEN scheme (as
primarily embodied in the Controlled Substances Act, 1984). Several
police
- particularly those in the Drug Task Force or working on drug-related
special investigations or as regional detectives - argued that the
maximum number of plants for which a CEN could be received should be
reduced from ten to three or four. They argued that the legislators
clearly intended that notices should only be issued in instances where
cannabis was being cultivated for personal use. It was argued that,
particularly with current growing techniques, people cultivating
cannabis for their own personal use should not require more than three
or four
plants.
4.Did police, other criminal justice personnel and the public
adequately understood the CEN scheme in South Australia?
Respondents from the law enforcement sector stated that introduction of
the expiation system seemed to have caused some confusion within
the general public. A number of people detected for possession, use or
cultivation of small quantities of cannabis now were under the
impression that this was legal. Police and other justice officials
demonstrated good understanding of technical aspects of the expiation
laws.
However, operational law enforcement officers were reluctant to
contemplate exercising greater discretion in the issuing of notices (for
example, only issuing a CEN if this was likely to achieve some public
benefit), and had not thought about ways of using expiation notices to
reshape cannabis markets (for example, to drive out organised crime
elements by flooding some locations or groups with notices).
From reviewing law enforcement and other criminal justice attitudes and
practices, the general conclusion is that, despite initial opposition
from
the Police Association and some concerns expressed by the Police
Department, the expiation notice approach now enjoys general support.
One major source of concern was that, because cultivations of up to ten
plants can be dealt with by means of expiation, some individuals and
groups may be exploiting the system for commercial purposes.
One way of dealing with this problem may be to reduce to three or four
the maximum number of plants for which a CEN can be issued.
Alternatively, however, police could give consideration to improving
intelligence systems, so that individuals or groups exploiting the CEN
system for commercial purposes could be 'driven out of the market' by
being served with repeated notices. Jurisdictions which took the latter
course would still leave scope for the genuine 'amateur' cultivator, who
may be unable to obtain sufficient yield from a small number of plants.
(Top)
IV. Discussion
As has been observed in other research on the CEN scheme in South
Australia, it appears that there has been a degree of net-widening under
the scheme since its implementation in 1987. However, the economic
analysis carried out for this project suggests that the net-widening has
not resulted in greater costs to the state. Furthermore, the expiation
approach in South Australia may well be more cost-effective than a
prohibition approach, despite net-widening and the fairly low observed
rate of expiation.
One of the tasks of this research was to investigate whether there might
be a difference between an expiation and a prohibition approach in
terms of the observed social costs for offenders and society as a whole.
The fairly low rate of expiation of CEN offences observed in South
Australia up to 1996 (around 45%) has suggested that financial hardship
among a substantial proportion of offenders may be a contributing
factor. Sarre, Sutton and Pulsford (1989) noted the low rate of
expiation in their initial evaluation of the CEN system. They found that
people detected for minor cannabis offences tend to be drawn from lower
socio-economic groups, and that they figured disproportionately among
those prosecuted for failing to pay expiation fees. The present study
provides further support for this view, from interviews with offenders,
and from published data (eg. the confirmation that there has been a much
greater representation of repeat offenders, who tend to avoid paying
fines, amongst non-expiators compared with expiators). While in this study, it
was not possible to fully characterise the non-expiator group and
compare it with the expiator group because of limited demographic
information available on CEN forms, there is suggestive evidence from
other research components that financial hardship is a factor for minor
cannabis offenders, particularly younger offenders. It remains to be
seen whether the recent enactment of the new Expiation of Offences Act,
1996 has an impact on rates of expiation and court loads for minor
cannabis offences.
Both the Western Australian and South Australian samples of cannabis
offenders interviewed for this project displayed some negative impacts
arising from cannabis offence detection and processing, including
financial difficulties. The WA group was more likely to report negative
employment consequences from offence detection (32% in WA vs 2% in SA).
While such consequences are based on the offenders'
self-reported perceptions of whether consequences were related to a
cannabis offence, the findings indicate an apparent and noteworthy
difference between the jurisdictions in terms of a significant area of
social impact.
In contrast, from the separate survey of employer groups conducted for
this project in WA and SA, it emerged that most employers in both
states reported that they were not concerned by employees' prior
offences or convictions for minor cannabis offences, but were more
concerned about the negative consequences possibly arising from cannabis
intoxication in the workplace. There differences between offender
and employer perceptions of employment consequences could be due to a
number of factors. A bias in the employer study could have been
introduced by an over-representation of large employers and
under-representation of smaller employers. Furthermore, non-respondents
to the
survey may have had more conservative attitudes to cannabis use than
those employers who were interviewed, thereby biasing the employer
study findings towards more accepting views. Nonetheless, the employer
study demonstrated that cannabis offences seem not to be especially
singled out when employers conduct criminal record checks.
The survey of cannabis offenders also showed significant differences in
other areas of social impact, with the SA sample experiencing fewer
negative impacts than the WA group in terms of relationship consequences
and effects on accommodation status. There was also a difference
between the SA and WA groups regarding subsequent criminal justice
consequences, with none of the respondents in the SA expiator group
identifying any negative episodes of involvement with the criminal
justice system which they thought were in some way related to their CEN,
while 32% of the WA sample identified at least one such consequence
related to their conviction. It may be that this finding is partly
related to
differences in ease of access to criminal history information on
offender records which police have in WA, such that they are able to
more
readily identify prior offenders than in SA.
In other respects the offender groups in the two states did not differ
greatly, with no differences found in terms of the extent to which they
saw themselves or others saw them as a criminal, as a result of the
incident. There were no differences between the groups regarding the
impact of the CEN or conviction on their drug use, with both the CEN and the
cannabis conviction groups reporting very little impact of offending on
subsequent drug use. There was also no significant difference between
the groups in terms of negative travel effects of conviction or CEN.
The majority of both the SA and WA offender groups saw themselves as
largely law abiding, and had respect for the role of police as law
enforcers and the law in general. The majority of both groups also
shared a lack of support for punitive drug laws, had a high level of
support for cannabis use being legal, and had positive views regarding cannabis.
Most thought that it was a safe drug and that the benefits of cannabis
outweighed the harms. Most saw it as much less harmful than a range of
other substances including alcohol and tobacco. This finding,
combined with the observation of a relatively poor knowledge in the
general community in South Australia about the health consequences of
heavy or long-term cannabis use, and the relatively heavy cannabis use
amongst offenders, suggests a possible avenue for harm reduction
through providing CEN offenders with health risk information at the time
of a CEN being issued.
There were differences between states in reasons for police attendance
and location of cannabis offence detection. More offences in SA
seemed to result from opportunistic detections, with fewer being
detected in private dwellings. This seems to accord with the
net-widening phenomenon observed from the published data, where changes to police
practices associated with the implementation of an expiation scheme
seem to result in a greater number of offences detected in the context
of routine police work.
While both the SA and WA groups were equally likely to report that they
were friendly, respectful and cooperative toward the police when
they were arrested or issued with their CEN, higher proportions of the
WA group reported that they had become less trusting and more fearful
of police. This is likely to be due in part to the greater number of WA
offenders who were apprehended in a private residence, and the greater
perceived intrusiveness of such apprehensions.
With regard to the South Australian CEN scheme, the low rate of
expiation has been a cause for concern since the first evaluation study
conducted by Sarre, Sutton and Pulsford (1989). Besides the inability to
pay expiation fines, another suggested reason was that many CENs
may be issued in the context of other charges being made, requiring the
offender to appear in court, and thereby reducing the incentive to pay
expiation fees. The present study was not able to provide a clear answer
to this question, owing to the way in which CEN data are stored, and
the problems in linking CEN offence data to criminal record data. The
concern has also been expressed that this factor could lead to doubling
up of court appearances for CEN fee defaulters who were required to
appear in court for other offences. Again, the extent of this could not
be
determined. However, with the recent changes to handling of all expiable
offences under the Expiation of Offences Act, 1996, this doubling up
effect would not occur, as expiation fee defaulters now receive
automatic convictions if they fail to respond to a payment reminder
notice,
without the need for a court appearance.
Another possible reason for failure to expiate notices in past years
might relate to individuals who, at the time of being issued with CENs,
give
false identifying information. The exact extent of this problem could
not be determined, but is probably not as great as was thought.
Statistics
obtained from SA Police for the present study showed that a fairly small
percentage of CENs issued would be withdrawn or cancelled by
police before being cleared or forwarded for prosecution (around 1%).
After unpaid CENs were forwarded for prosecution, a further
proportion would be deemed unsuitable for prosecution and withdrawn. The
reasons for such matters being withdrawn would most probably
relate to incomplete information being recorded on CEN documentation to
enable prosecution to proceed. Among the CEN matters withdrawn
at various stages, there would be an unknown proportion that had false
identifying information recorded on them. Then, for those cases where
a summons was sent out, a proportion would involve offenders who had
given false addresses or other identifying information, making it
impossible to proceed with the matters any further. Further research is
needed, examining final outcomes from court proceedings (ie. after any
further defaulting on court-imposed fines, issuing and serving of
warrants, and completion of subsequent penalties, including
imprisonment) in
order to gain a more complete picture of the extent of CEN offences
which are not resolved, and the degree to which false information may
contribute to follow-up losses.
The Expiation of Offences Act, 1996 (which came into effect from early
1997), besides having a likely effect on the expiation rate for
cannabis offences, provides more information to recipients of notices on
the consequences of failure to pay expiation fees. This provision
alone may contribute to improving expiation rates, as well as improving
the perceived fairness of the system. The need for more detailed
information on the financial and legal consequences of non-payment of
CENs was highlighted by respondents in the SA offender interview
study. Furthermore, earlier research on knowledge and attitudes
regarding cannabis laws (Bowman & Sanson-Fisher, 1994), as well as the
community attitudes survey conducted for this project, have shown that
aspects of the CEN scheme are not well understood in the South
Australian community. There may be scope for expanding upon information
provided to offenders on CEN forms, perhaps by providing
offenders with a detailed information sheet at the time of receipt of a
CEN.
The observation that the 45 years and over group is the one for which
cultivation offences account for the highest proportion of total CENs
issued suggests that cannabis cultivation is more of an activity for
older people involved in the culture of cannabis and its use. While the
majority of cultivators issued with CENs are in the 25 to 34 year age
group, it does seem that older people who remain involved with a
cannabis using culture (and hence are at risk of detection by police, by
whatever means) are more likely to be involved with cannabis cultivation
as compared with just using cannabis. It should be emphasised that some
of this observed variation in the proportion accounted for by
cultivation offences at each age level may be explained by a possible
detection bias associated with age; younger people involved with a
cannabis using culture may be exposed to greater risk of detection due
to the circumstances in which they use the drug, which in turn may
mean that the younger groups are more likely to be detected for
possession and use offences, rather than cultivation offences.
A related observation was the trend towards higher rates of expiation of
cultivation offences among older age groups. As mentioned elsewhere,
higher rates of expiation among older offenders generally may reflect a
greater awareness of the consequences of failure to pay CEN fees.
Furthermore, older offenders are probably less likely to have trouble
paying CEN fines. The fact that this trend is mainly evident for
cultivation
offences, and not possession/use offences, reinforces the notion that
cultivation may be perceived by offenders as more serious then
possession of cannabis, and therefore results in a greater likelihood of
being cleared. Indeed, it could be argued that police also view
cultivation
offences as more serious than possession offences, as larger total
weights of cannabis can be expiated in plant form than as dried cannabis
in
someone's possession; there is thus greater potential for small
commercial amounts to be held by cultivators of cannabis plants than by
those
who just hold "possession" amounts. This situation may contribute to
older cannabis cultivators in particular wishing to clear their offences
by
paying expiation fees on time.
The present study was not able to shed light on the extent of home
cultivation of cannabis which might involve the use of hydroponic
techniques. The data on offences issued by month showed a clear cyclic
variation in the numbers of CENs issued at different times of the year,
particularly for cultivation offences, where such offences were almost
six times as numerous in March as in the lowest period around July. It
may be that a high proportion of plants in cultivation detected by
police at around this time of year are being grown in assisted
environments,
perhaps with hydroponic techniques, as the winter months are not as
conducive to growing mature cannabis plants out of doors. The extent of
this cannot be readily gauged from the published data.
It is important to note that none of the data on cannabis offences under
the CEN scheme available for the present study gives any indication of
the potency (ie. THC content) of dried cannabis seized in possession
offences. Furthermore, no data are available on the potency of cannabis
plants found in cultivation, including whether plants found might be
higher potency strains such as "skunk". An interesting area for research
would be to analyse the potency of cannabis plants seized at different
times of the year, with comparisons of potency for different growing
methods.
The implications of cannabis potency for cannabis markets and the health
of cannabis users are somewhat unclear. Offence data do not shed
light on what cultivators of expiable numbers of cannabis plants might
do with the material they grow, including whether they keep all of what
they grow for themselves, give some away to friends, or try to sell some
of it. While the interviews conducted with cannabis offenders in SA
showed a degree of plant cultivation among the group, with a minority
involved in small scale sale of home-grown cannabis, there were
insufficient sample numbers to make judgments on average potency of
home-grown cannabis in South Australia.
The data presented in this report have shown that a reasonable
proportion of CENs issued have been withdrawn at various stages of
processing. Among the CENs issued, a small proportion (about 1%) have
been cancelled or withdrawn before failure to pay expiation fees
became an issue. CENs which have not been expiated are examined by the
prosecutions section of the SA Police, for determination to be made
on whether a prosecution can successfully proceed. The limited reliable
data available showed that 3?4% of CENs forwarded for prosecution
(or 2% of CENs issued) would be withdrawn by police at this stage in
processing, before charges were laid. The exact reasons for individual
CENs being withdrawn at this point are not recorded, but it is likely
that many relate to problems in ascertaining the correct identity or
contact details of the offenders, or with there being insufficient evidence to
allow a successful prosecution to proceed. Such problems are not
unexpected in a system where a simple expiation matter can, if left
unpaid, convert to a drug offence which requires a greater standard of
evidence to support it, and the assumption of guilt on the part of
offenders. The percentage of matters withdrawn before charges are laid,
it could be argued, is fairly low, given the difficulties faced by police
in proving identity of offenders in certain situations where cannabis
offences are detected, such as at parties, or when offenders are
visitors at the place of detection. Even so, there may be scope for
enhancing police training, or revising police operating procedures in this area,
in order to maximise the potential for later prosecution of unexpiated
CENs. This could include increasing the application of proof of identity
requirements in situations where detected offenders do not have proof
of identity at the time of offence detection.
The finding that well over 90% of prosecutions relating to failure to
pay CEN fees resulted in convictions for the offenders is a cause for
concern in terms of adverse social consequences. As discussed,
substantial numbers of CEN offenders have failed to pay expiation fees
on time since the CEN scheme began operation, and the reasons for the low
rate of expiation are probably varied. Whatever the reasons, the low
rate of expiation means that large numbers of offenders have exposed
themselves to the risk of receiving a conviction for a minor cannabis
offence, in a system that, it could be argued, was designed to remove or
reduce that risk of conviction. For the five years from 1991/92 to
1995/96, a total of 37,470 convictions for unpaid CEN matters were
handed down; these represent 46% of all CENs issued over that period.
In presenting these findings relating to convictions handed down for CEN
matters which were not cleared by expiation, it should be
emphasised that a small proportion of such cases would be left
unresolved because of false or insufficient information being available
to
adequately identify an offender. This would most likely be a relatively
small number in addition to the 5% of CEN offences identified as
withdrawn or dismissed for various reasons
As the rate of conviction for offenders who failed to expiate CENs is so
high, the differences between the offence types in the proportion of
conviction outcomes were minor. Cultivation offences had the lowest
proportion of offenders who received no conviction (1.2%), and the
highest proportion of convictions being given (95.2%), reinforcing the
perception that cultivation offences overall may be viewed by courts as
being more serious than cannabis possession offences.
It is also of concern that many convictions for CEN offences may have
resulted from individuals who did not pay CEN fees on time because
they faced financial difficulty, or who had let CEN matters lapse
because they misunderstood the consequences of failure to expiate CEN
fees
(ie. that an unexpiated CEN offence effectively converts to a drug
offence, with the attendant risk of conviction). As discussed earlier,
the new
Expiation of Offences Act, 1996 may to a large extent address the
problems of CEN offenders facing difficulty paying expiation fees,
through
the provision of more payment options which can be chosen if financial
hardship can be demonstrated. Another suggestion that has been
raised is that there be a greater range of expiation fee amounts, so
that offences involving very small amounts might incur a lower fee,
thereby
improving the likelihood of expiation. Furthermore, the new CEN forms
may improve the level of understanding the consequences of failing to
pay. However, the new Expiation Act has not removed the possibility of
conviction for unpaid expiation fines. The introduction of automatic
conviction processes for CEN offenders who do not pay fines or specify
an alternative method for clearing the matter may mean that a small
group of CEN offenders will receive convictions more readily than under
the older Expiation Act (eg. those who receive CENs in the context
of other offences). It is too early as yet to comment on what effect the
new Expiation Act will have on rates of expiation of minor cannabis
offences, and the risk of receiving a conviction after being issued with
a CEN.
The analyses conducted for this study using SA Police data showed that
community service orders were infrequently imposed as the main
penalty accompanying conviction for CEN offences which remained
unexpiated. Despite this, there would be a greater number of CEN
offenders who at some time after their court matter has been dealt with
apply to have their court-imposed fines converted to community service
orders. Unfortunately, it was beyond the scope and resources of this
study to obtain figures on these later outcomes following on from court
processing of offenders. Such an analysis could be carried out by the
Courts Administration Authority, but would require additional funds and
more time than was available to the researchers for the present study.
Similarly, a reliable analysis of CEN-related fee defaulters receiving
imprisonment as a result of failure to pay court-imposed fines could not
be undertaken within the present study, as the available data sets
would require considerably more work to enable thorough tracking of
expiation offenders through to imprisonment.
The data provided by SA Police for this study allowed a fairly
rudimentary picture to be gained of the extent of repeat offending for
expiable
cannabis offences. There are methodological difficulties that need to be
acknowledged in assessing the extent of repeat offending under the
CEN scheme, and these largely relate to the difficulties in identifying
separate CEN offence incidents for the same unique individuals.
Identifying separate CEN offences from separate occasions involving the
same person involves carrying out computer matching on name and
date of birth data. It is not known how many repeat offenders might have
been missed through this process. It can be said that those repeat
offenders identified in the study will be an under-representation of the
actual numbers of such offenders; furthermore, the figures generated
will under-estimate the true numbers of repeat offences for each repeat
offender.
It should also be recognised that the numbers of repeat offenders
identified, and the numbers of separate offences found for each repeat
offender, will depend on the period over which data records have been
analysed. For this research, analyses were conducted on the extent of
repeat offending within each financial year, and also within the total
five year period for which complete data were available, from 1991/92 to
1995/96. Had adequate records been available for a longer period,
perhaps going back as far as the beginning of the CEN system in 1987,
the
extent of repeat offending found within the data would have no doubt
been higher.
It was noteworthy that close to 25% of all CEN offences issued over the
five year analysis period were verified as being issued to repeat
offenders (offenders who had been issued with more than one CEN over the
five year analysis period, from 1991/92 to 1995/96). This is a
substantial proportion, and as mentioned above, will be an underestimate
of the full extent of repeat offending. Most repeat offenders had been
issued with two CENs on different occasions, and within any given year,
around 8 ? 9% of all CENs issued were to people who had two CEN
offences within the year. For the entire five year study period, around
13% of all notices issued went to individuals identified as having two
separate offences. Also, a substantial number of repeat offenders had
had three CENs issued within the five year period, accounting for a
further 5 ? 6% of all CENs issued. As would be expected, fewer
individuals had larger numbers of repeat offences for which CENs were
issued. It could be argued that heavier and longer-term users of
cannabis, those who choose to cultivate cannabis plants for their own
use, and
those who are more involved with a cannabis-related subculture, will be
more likely to be detected repeatedly over time. Age of offenders will
be a factor in the risk of repeat offence detection, in that older users
of cannabis (who have maintained some degree of ongoing use) will have
had a longer period of exposure to police detection.
When repeat offenders are divided into those for whom repeat offences
were expiated, and those for who repeat offences were prosecuted, it
emerges that the majority of repeat offenders tend not to expiate CENs.
While precise reasons for this cannot be ascertained from the data,
repeat offenders are probably more likely to be known to police, and
have other social problems which make their payment of expiation fees
on time less likely.
When population survey data on levels of cannabis use are considered, it
appears that the CEN scheme has had little impact. Data from
national drug use surveys of the general community indicate that there
has been a greater increase in self-reported lifetime cannabis use in
South Australia between 1985 and 1995 than in the average of the other
Australian states and territories. However, this increase is unlikely to
be due to the CEN system because: (1) similar increases occurred in
Tasmania and Victoria, where there was no change in the legal status of
cannabis use; (2) there was no differential change in weekly cannabis
use in South Australia as compared with the rest of Australia, and (3)
there was no greater increase in cannabis use among young adults aged 14
to 29 years in South Australia. It is also possible that part of the
observed increase in self-reported lifetime use in South Australia can
be attributed to a greater willingness of people to admit to cannabis
use in
a population household survey, compared to jurisdictions with a total
prohibition approach to minor cannabis offences
A final area of significant enquiry in the present study involved the
opinions about the CEN scheme of law enforcement and criminal justice
personnel working in South Australia. Senior officials involved in
dealing with the CEN scheme in the SA Police and other departments have
generally agreed that the CEN scheme should remain in place, and
provides an efficient way of dealing with minor cannabis offences. It
was
also highlighted as provided advantages for offenders, through avoiding
the stigma associated with criminal conviction. A significant concern
was raised by some senior police, regarding the potential for
exploitation of the expiable cultivation offence limit of 10 plants. It
was argued
that some commercial cannabis cultivation enterprises were spreading
their operations, in order to keep individual site plantations at 10
plants
or fewer, while maximising the yields through sophisticated cultivation
techniques. It has been proposed that this problem can be readily dealt
with by reducing the maximum number of plants expiable under the CEN
scheme from ten to three or four. An alternative approach might be
to maintain the ten plant limit, and try to impact on organised
cultivation groups in other ways, such as police utilising the provision
under the
law, allowing commercial cultivation charges to be laid if the quantity
of cannabis under cultivation or the circumstances lead them to suspect
a
commercial operation. Another suggestion that has been put forward is
that, where police suspect that a commercial operation is taking
advantage of the expiation provisions, police use the expiation scheme
to repeatedly issue CENs for cultivation offences. This would require
additional surveillance efforts, but continued seizure of plants and
growing equipment may have a significant impact on these groups, and may
be easier for police to sustain as a strategy for putting an end to
their operations.
From the foregoing discussion, it has emerged that the CEN scheme in
South Australia appears to have numerous benefits for the community,
not the least of which are cost savings for the community as a whole,
reduced negative social impacts for offenders, and greater efficiency
and
ease in having minor cannabis offences dealt with, associated with less
negative views held by offenders of police. While there have been
problems identified with the administration of the CEN scheme over time,
it appears that the purported adverse effects associated with some
unintended consequences of the CEN scheme are less problematic than
previously thought. A good example is that, while net-widening has
occurred under the system, it does not appear to have adversely affected
court loads and costs. However, the effect of net-widening on
offenders is less clear, as there is likely to be a small group of
repeat offenders for whom repeated detection and prosecution may place
them
in greater financial hardship. One of the more telling findings from
this study is that a significant number of CEN offenders will ultimately
still receive a conviction as a result of an expiable offence, with the
associated stigma and potential consequences. It remains to be seen
whether
modification of the CEN scheme, as has been already done to some extent
via the changes to the administrative and payment procedures for
expiable offences in South Australia, will result in fewer minor
cannabis offenders receiving convictions.
(Top)
5. Summary and Conclusions
1.The establishment of the Cannabis Expiation Notice (CEN) scheme
in South Australia in 1987 has resulted in some degree of
"net-widening", in that the number of minor cannabis offences
detected under the scheme increased about two and a half times
between 1987 and 1996. This increase appears to be mainly due the
greater ease with which a CEN can be issued under the scheme,
compared to the procedures for an arrest and charge that would
required for a prosecution.
(Top)
References
Ali, R. & Christie, P. (eds.) (1994). Report of the National Task Force
on Cannabis. Canberra: Australian Government Publishing Service.
Bowman, J. & Sanson-Fisher, R. (1994). Public Perceptions of Cannabis
Legislation in Australia. prepared for the National Task Force on
Cannabis. National Drug Strategy Monograph Series, No. 28. Canberra:
Australian Government Publishing Service.
Christie, P. (1991). The Effects of the Cannabis Expiation Notice Scheme
in South Australia on Levels of Cannabis Use. Adelaide: Drug and
Alcohol Services Council.
Christie, P. & Ali, R. (1995). The Operation and Effects of the Cannabis
Laws in South Australia. In D. McDonald & L. Atkinson (Eds.)
Social Impacts of the Legislative Options for Cannabis in Australia
(Phase 1 Research): A Report to the National Drug Strategy
Committee. Canberra: Australian Institute of Criminology.
Commonwealth Department of Health and Family Services. (1996).National
Drug Strategy Household Survey: Survey Report 1995.
Canberra: Australian Government Publishing Service.
Donnelly, N. & Hall, W. (1994). Patterns of Cannabis Use in Australia.
prepared for the National Task Force on Cannabis. National Drug
Strategy Monograph Series, No. 27. Canberra: Australian Government
Publishing Service.
Donnelly, N., Hall, W. & Christie, P. (1995). The Effects of Partial
Decriminalisation on Cannabis Use in South Australia 1985?1993.
Australian Journal of Public Health, 19(3), pp 281?287.
Drug & Alcohol Services Council. (1997). Cannabis Laws in SA.
Information Sheet No. 12. Adelaide: Drug & Alcohol Services Council.
Lenton, S. (1995). Cannabis Offenders in the Western Australian Criminal
Justice System. In D. McDonald & L. Atkinson (Eds.) Social
Impacts of the Legislative Options for Cannabis in Australia (Phase 1
Research): A Report to the National Drug Strategy Committee.
Canberra: Australian Institute of Criminology.
Lenton, S., Ferrante, A. and Loh, N. (1996) Dope busts in the West:
Minor cannabis offences in the Western Australian criminal justice
system. Drug and Alcohol Review, 15(4), 335-341.
Manderson, D. (1993). From Mr Sin to Mr Big: A History of Australian
Drug Laws. Melbourne: Oxford University Press.
McDonald, D. & Atkinson, L. (eds.) (1995). Social Impacts of the
Legislative Options for Cannabis in Australia: Phase 1 research. Report
to the National Drug Strategy Committee. Canberra: Australian Institute
of Criminology.
McDonald, D., Moore, R., Norberry, J., Wardlaw, G. & Ballenden, N.
(1994). Legislative Options for Cannabis in Australia. Prepared for the
National Task Force on Cannabis. (National Drug Strategy Monograph
Series, No. 26). Canberra: Commonwealth Department of Human
Services & Health.
Sarre, R., Sutton, A. & Pulsford, T. (1989). Cannabis ? The Expiation
Notice Approach. (Report Series C, No. 4, June). Adelaide: South
Australian Attorney-General's Department.
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Appendix 1
The Cannabis Laws in South Australia
Controlled Substances Act, 1984
The Controlled Substances Act, 1984 proscribes the production, sale,
supply, use, and possession of certain drugs of dependence and
prohibited substances, including cannabis, and it proscribes the
possession of drug paraphernalia. The introduction of this Act also
brought in
new penalties for large-scale trafficking. It introduced a greater
degree of separation between offences involving cannabis and those
involving
other illicit drugs. In treating cannabis differently from other illicit
drugs, the 1984 Act acknowledged the different level of harm that seemed
to
be associated with cannabis use compared with other illicit drug use.
Under the 1984 Act, the maximum penalty for the possession, use, or
cultivation for personal use of a small quantity of cannabis was $500,
while for any other drug of dependence, the maximum penalty was
$2,000 and/or two years imprisonment. The 1984 Act also provided for
significant reforms in the way offences relating to the possession and
use of all illicit drugs (other than cannabis) were dealt with, through
the introduction of a drug assessment panel as an alternative to
criminal
prosecution (Manderson, 1993).
Controlled Substances Act Amendment Act, 1986 ? The Cannabis Expiation
Notice Scheme
Further reform to the South Australian drug laws came with the
introduction of the Controlled Substances Act Amendment Act, 1986. This
amendment proposed a number of changes to the Controlled Substances Act,
1984, including the insertion of Section 45a (Expiation of
Simple Cannabis Offences). This represented the adoption of a new scheme
for the expiation of simple cannabis offences, such as
possessing or cultivating small amounts of cannabis for personal use, or
possessing implements for using cannabis.
The Cannabis Expiation Notice (CEN) scheme came into effect in South
Australia on 30 April 1987. Under this scheme, adults coming to the
attention of police for "simple cannabis offences" could be issued with
an expiation notice. Offenders were able to avoid prosecution by
paying the specified fee or fees within 60 days of the issue of the
notice. Failure to pay the specified fees within 60 days could lead to
prosecution in court, and the possibility of a conviction being
recorded.
Underlying the CEN scheme was the rationale that a clear distinction
should be made between private users of cannabis and those who are
involved in dealing, producing or trafficking in cannabis. This
distinction was emphasised at the introduction of the CEN scheme by the
simultaneous introduction of more severe penalties for offences relating
to the manufacture, production, sale or supply of all drugs of
dependence and prohibited substances, including offences relating to
larger quantities of cannabis.
Section 45a(5) of the Controlled Substances Act, 1984 states that "the
payment of an expiation fee shall not be regarded as an admission of
guilt". For most of the time that the CEN scheme has been operating (ie.
until 1997), if an alleged offender wished to contest a matter for
which an expiation notice had been issued, they had no option other than
not to pay the expiation fee, and thereby receive a summons for
failure to expiate, and consequent court appearance (this has changed
since early 1997 ? see next section). In doing so, they faced the
possibility, if found guilty of the offence, of receiving a criminal
conviction. It has been argued that this may have been a barrier to
people
wishing to challenge a cannabis expiation matter (Sarre, Sutton &
Pulsford, 1989). Further, it has been suggested that the CEN system
could
be improved by removing the possibility of criminal conviction for those
people who choose to contest a matter for which they have been
issued a CEN.
There has been some debate as to whether the introduction of the CEN
scheme in South Australia does in fact represent the decriminalisation
of minor cannabis offences. Manderson (1993) believes that, with the CEN
scheme, South Australia has indeed decriminalised small-scale
cannabis use. It should be emphasised, however, that a criminal
conviction for expiable cannabis offences remains a possibility if a
person
issued with an expiation notice fails to pay the expiation fine within
the specified time, and the matter is subsequently dealt with in court.
Sarre,
Sutton and Pulsford (1989) prefer to view the South Australian approach
as one that de-emphasises the criminal status of small-scale cannabis
use, but stops short of decriminalising it. The National Task Force on
Cannabis, in its paper on legal options for cannabis (McDonald, Moore,
Norberry, Wardlaw & Ballenden, 1994) chose to avoid the problems and
ambiguities associated with the word "decriminalisation" by referring
to the South Australian model for dealing with small-scale cannabis
offences (as also found in the Australian Capital Territory, the
Northern
Territory and various US states), as "prohibition with civil penalties".
Expiation of Offences Act
Issues relating to the payment and administration of all expiable
offences (including traffic, minor cannabis, and numerous other types of
offences) were initially covered by the Expiation of Offences Act, 1987.
Under this Act, offenders issued with expiation notices for minor
cannabis offences had a period of 60 days in which to pay the fee or
fees. The Act allowed for in-person or postal payments to be made, but
full payment of expiation fees was required. The expiation notice form
did not suggest alternative payment options (eg. partial payments over
time).
Failure to pay expiation fees within the 60 day period resulted in a
summons being issued to the offender. Thus, at this point the offence
effectively changed from an expiable one, for which no criminal
conviction would be recorded if the offence was cleared, to a
non-expiable
offence which carried a likelihood of criminal conviction. On receipt of
the summons, an offender could choose to plead guilty in writing, or to
appear in court in person. Court proceedings involving CEN fee
defaulters would be dealt with by Justices of the Peace. In most cases,
fines
would be imposed which were similar in magnitude to the expiation fees,
with the addition of court costs (Christie & Ali, 1995). These
outcomes would be irrespective of whether the offender pleaded guilty in
writing or appeared in court in person.
In 1996, the Expiation of Offences Act, 1996 was passed, and brought in
changes to the way in which all expiable offences are dealt with,
including minor cannabis offences. The types of minor cannabis offences
and the expiable amounts of cannabis involved remained unchanged.
The new expiation notice forms outline a range of options for offenders
in how they can deal with the offence. The new Expiation Act provides
for alternative payment options for offenders, including paying
expiation fees in instalments, and clearing fees through community
service.
With these options, an application to the Registrar of the Magistrates
Court must be made, pleading financial hardship. Instalment payments
can only be applied for if $50 or more is owed in expiation fees, and
community service is only available if $150 or more is owed, and the
offender cannot pay by instalments.
The new Expiation of Offences Act also dealt with the problem of alleged
offenders having to let payment of expiation fees lapse in order to
secure a court appearance to contest a matter for which they had been
issued a CEN. Under the new Act, the expiation form includes an option
whereby the offender can choose to be prosecuted, and thereby dispute
the allegation that they committed an offence. In doing so, they still
run
the risk of being found guilty and receiving a criminal conviction. In
this regard, the new Act has dealt with one of the two issues raised by
Sarre, Sutton and Pulsford (1989) as barriers to disputing expiation
offences: while people issued with CENs can now actively choose
prosecution as an option, in doing so, the offence converts from one
which can be expiated to one which still carries the possibility of
conviction.
Another change under the new Expiation of Offences Act is that if the
total amount of expiation fees payable is $50 or less, the offender now
has 30 days to pay (rather than 60, as under the previous Expiation of
Offences Act). If the amount of fees is greater than $50, the offender
has 60 days to pay. Furthermore, the new Expiation of Offences Act
introduced a different approach to dealing with offenders who do not pay
the total of expiation fees within the prescribed time period, and do
not choose an alternative payment option. Rather than be issued with a
summons to appear in court, such offenders are now sent a reminder
notice, which incurs an additional reminder fee. Continued failure to
pay
the outstanding expiation fees then results in an automatic conviction
being recorded, without the issuing of a summons and subsequent court
appearance. In such cases, the offender is convicted with the unpaid
fees becoming the fine, and court costs being added.
The rationale behind the introduction of the new Expiation of Offences
Act, 1996 was partly based on considerations of social justice, such
that people who are in financial difficulties might not be disadvantaged
by being more likely to default on expiation fee payments, and thereby
obtain criminal convictions. It may have been hoped that the new system
would improve the rate of expiation and improve revenue raising,
particularly for cannabis offences, where the rate of expiation had been
at under 50% for a number of years. In addition, the different
procedures for dealing with fine defaulters, it could be argued, would
be likely to reduce workloads for courts administration staff and reduce
court case-loads, thereby reducing costs.
The issuing of the new expiation notice forms by SA Police commenced in
February 1997. At the time of preparation of the present report,
reliable data on offences under the new system was not available. It is
therefore too early to comment on how the introduction of the
Expiation of Offences Act, 1996 may have affected rates of expiation and
court costs and workloads.
Expiable Offences under the CEN Scheme
Regulations under the Controlled Substances Act, 1984 were made with the
introduction of the Cannabis Expiation Notice scheme in 1987,
which specified the types of expiable minor cannabis offences and their
associated expiation fees. The expiable offences and fees are as
follows (Drug & Alcohol Services Council, 1997):
Possession of cannabis:
-- less than 25g
-- 25g or more but less than 100g
Possession of cannabis resin:
-- less than 5g
-- 5g or more but less than 20g
Smoking or consumption of cannabis or cannabis resin in a private
place
Possession of equipment for smoking or consumption of cannabis or
cannabis
resin, whether in public or private:
-- if in connection with one of the above offences
-- otherwise
Cultivation of cannabis plants:
-- 10 plants or fewer (provided the cannabis is for the
grower's own use and not for sale or supply)
$50
$150
$50
$150
$50
$10
$50
$150
If the quantity of cannabis being cultivated ? for example, 10 very
large plants ? leads police to suspect that the grower is supplying
others, a
"commercial cultivation" charge may be laid, requiring prosecution in
court. If the court is satisfied that the cannabis was grown solely for
the
grower's own use, a maximum penalty of $500 applies.
Expiation notices for cannabis offences can only be issued to persons
aged 18 years or over.
It should be noted that when the CEN scheme first came into operation,
expiable cannabis cultivation offences were defined as those involving
small numbers of plants for non-commercial purposes. The terms
"commercial purposes" and "non-commercial purposes" were not defined in
the Controlled Substances Act (Sarre, Sutton & Pulsford, 1989). However,
a prosecution could proceed against any person alleged to be
selling or offering for sale any amount of cannabis to another person,
as such offences were clearly defined as non-expiable. Thus, police were
able to effectively deal with small-scale cultivation offences through
the CEN scheme, despite some ambiguity existing within the Controlled
Substances Act regarding expiable quantities of plants under
cultivation. In order to remove this ambiguity, the Controlled
Substances Act
Amendment Act (No. 2), 1990 was assented to, and came into operation in
September 1991. Among other things, this amendment clearly
defined an expiable "simple cannabis offence" with regard to cultivation
of cannabis plants as one involving no more than 10 plants. (In
addition, for persons found guilty in court of cultivation of cannabis
plants, but solely for their own use, the amendment defined 10 plants as
the threshold number allowed to incur a maximum court-imposed fine of
$500; amounts above this number of plants could incur substantially
greater penalties).
Non-expiable Cannabis Offences
Offences involving larger amounts of cannabis are not expiable under the
CEN scheme, and are dealt with through the courts. Where large
trafficable quantities of cannabis are concerned, the penalties set down
are substantial.
It should be noted that certain types of offences, potentially involving
only small amounts of cannabis, are non-expiable (e.g. offences
involving possession or use of cannabis oil, and offences involving
consumption of cannabis in a public place, including a motor vehicle).
These have been deemed more serious, and requiring a court appearance.
A person knowingly possessing 100 grams or more of cannabis or 20
grams or more of cannabis resin, or found to be cultivating
more than 10 cannabis plants, is deemed to do so for the purpose
of sale or supply to another, in the absence of proof to the contrary.
If a court is satisfied that an amount of cannabis greater than
100 grams, or of cannabis resin greater than 20 grams is for personal
use
only, a maximum fine of $500 applies, with the possibility of
conviction.
All offences relating to cannabis oil ("hash oil") are
non-expiable. The charge of personal possession of cannabis oil may
incur a
penalty not exceeding $2,000 or 2 years imprisonment, or both.
Smoking or consumption of cannabis in a public place (including a
motor vehicle) is a non-expiable offence, and carries a maximum
fine of $500.
Cannabis possession and use by persons under the age of 18 years
are dealt with under the Young Offenders Act, 1993, via a system
of formal and informal cautions, family conferences or referrals
to the Youth Court.
Driving under the influence of cannabis is an offence under the
Road Traffic Act, 1961, and penalties are the same as those for
driving under the influence of alcohol.
Offences relating to commercial cultivation, sale and supply are
not expiable, and penalties are severe, having been increased both with
the introduction of the CEN scheme, and in subsequent amendments
to the Controlled Substances Act, 1984. The maximum
penalties for trafficking in any amount of cannabis are as
follows:
More severe penalties apply to the sale or supply of cannabis to
children under 18 years of age, or to the possession of cannabis for
the purpose of sale or supply to another person within a school
zone (i.e. the grounds of a school, or within 500 metres of the school
boundary). The maximum penalties which apply are:
(Top)
Appendix 2
Terms of Reference for the Cannabis Social Impacts Study (Second Phase)
As a further elaboration of the questions of central importance
identified by the Commonwealth steering committee for the second phase
research, the following terms of reference for the project were
formulated:
The researchers will provide a report which:
1.provides comprehensive information and data on South Australian
laws and enforcement activities relating to minor cannabis offences
since the introduction of the Cannabis Expiation Notice (CEN)
scheme in South Australia;
The Social Impacts of the Cannabis Expiation Notice in South Australia
2.The majority of offences for which CENs have been issued in South
Australia relate to the minor offences of possession of less than
25 grams of cannabis, possession of equipment for consuming
cannabis, and cultivation of no more than 10 plants. Most CENs for
equipment offences are issued in conjunction with another minor
cannabis offence.
3.Since the introduction of the CEN scheme, the rate of expiation
of notices has remained low compared with other types of
infringement notices, and has remained fairly stable at
approximately 45% for the last few years of operation of the scheme. The
reasons for the low rate of expiation of cannabis offences are
likely to relate to financial difficulty experienced by a substantial
proportion of those detected for minor cannabis offences, as well
as poor understanding amongst this group of the actual legal status
of minor cannabis offences and the consequences of failure to pay
expiation fees. In particular, there has been a fair degree of
misunderstanding of the fact that failure to expiate a CEN can
result in a criminal conviction being recorded against the offender.
4.Around 90%of those CENs which were forwarded for prosecution
between 1991 and 1996 resulted in a conviction being recorded
against the offender, because expiation fee payments were not
made. This represents about 45% of all CENs issued over that period,
and a large number of offenders for whom the conviction would
have been avoided had they payed expiation fees on time.
5.The rate of expiation of CEN offences may improve following
recent changes to the way in which all expiable offences are
administered under the Expiation of Offences Act, 1996. The
provision to offenders of a range of payment options (eg. instalment
payments, community service) which can be specified before an
unpaid CEN matter is forwarded for prosecution may result in a
higher proportion of CENs being expiated. In addition, the
provision of clearer and more detailed information on the consequences
of
failure to pay expiation fees may help to improve expiation
rates. Furthermore, these changes may bring about a corresponding
reduction in the proportion of CEN matters which result in a
conviction for the offenders. Ongoing monitoring will be required to
determine whether the new CEN forms and payment provisions bring
about such changes.
6.Around 5% of CEN matters are withdrawn before payment is made or
prosecution is completed, most likely due to inadequate
information being available to ensure a successful prosecution in
the event of failure to pay expiation fees. A further proportion would
be withdrawn or dismissed after court proceedings have been
completed, involving cases where the offenders could not be located for
follow-up regarding payment of fines. The exact proportion of CEN
cases involving false or incomplete information could not be
ascertained in the present study. There may be scope for
addressing this issue by providing supplementary training of operational
police in the issuing of CENs.
7.National population survey data indicate there has been a
national increase in self-reported lifetime cannabis use between 1985
and
1995, with a greater degree of increase in South Australia than
in the average of the other Australian states and territories. However,
the South Australian increase is unlikely to be due to the CEN
system because: (1) similar increases occurred in Tasmania and
Victoria, where there was no change in the legal status of
cannabis use; (2) there was no differential change in weekly cannabis
use in
South Australia as compared with the rest of Australia, and (3)
there was no greater increase in cannabis use among young adults aged
14 to 29 years in South Australia.
8.Many minor cannabis offenders in both South Australia and Western
Australia appear to be people who are otherwise law-abiding.
Surveys of samples of cannabis offenders in both states found
that the majority in both states had respect for police and the law in
general. It was also found that their offence apprehension and
subsequent arrest (WA) or issuing of a CEN (SA) had no impact on
their patterns of cannabis or other drug use.
9.Interviews with cannabis offenders found that negative employment
consequences arising from a cannabis offence apprehension were
more likely to be experienced by offenders in Western Australia
compared to South Australia (eg. loss of job, missing out on a job
opportunity). Those in the WA system were also more likely to
report relationship problems, accommodation problems, and further
involvement with the criminal justice system related to their
first minor cannabis offence. In terms of impacts upon drug use and
travel
opportunities, no differences were found between offenders in
both states. However, offenders in Western Australia were more likely
than those in South Australia to have more less favourable
attitudes towards police following their cannabis offence detection.
10.No differences were found in the self-reported attitudes of
employers in both South Australia and Western Australia towards
employing people with prior cannabis offences, there being a
general lack of discrimination expressed against such offenders. This is
somewhat at odds with the reported experiences of cannabis
offenders in the two states. It was clear that cannabis offending is not
an
important part of employer screening in many employment areas,
although employers in both states were concerned about the
potential risks associated with cannabis intoxication in the
workplace, and the long term effects of cannabis use on work
performance.
11.While there is a level of acceptance in the South Australian
community of personal cannabis use among adults, activities relating to
the
commercial sale or supply of cannabis are not viewed favourably
by the public.
12.The general public in South Australia had a reasonable awareness
of the CEN scheme in general, but retained a fair degree of
confusion about the details of the CEN scheme and the
consequences of being detected for various minor cannabis offences.
There
was also incomplete recognition of the possible health risks
associated with long-term or heavy cannabis use. As many people issued
with expiation notices are heavy consumers of cannabis, there is
an opportunity to deliver health messages with the notice at the time
of issuing.
13.Despite the fairly low rate of expiation and the apparent
"net-widening" observed under the CEN scheme since its implementation in
1987, it would seem that the scheme is more cost effective for
dealing with minor cannabis offences than a prohibition approach based
predominantly on prosecution and conviction. It might be expected
that greater efficiencies could be achieved if the rate of expiation
can be increased in the future, with a corresponding reduction in
the number of CEN fee defaulters who receive convictions.
14.There is clear and widespread support for the CEN scheme amongst
South Australia law enforcement and criminal justice personnel.
This support is based largely on the perception that the
expiation approach provides a fair and cost-effective way of dealing
with
minor cannabis offences.
15.Concern has been expressed by some South Australian police
officers about the potential for exploitation of the CEN scheme by
organised criminal syndicates who grow commercial quantities of
cannabis in separate locations while operating within the expiable
cultivation limit of 10 plants. In order to address this issue,
it has been suggested that the CEN scheme be modified to reduce to
maximum expiable number of plants under cultivation from ten to
three or four.
16.In addition to the provision of more payment options for
offenders and more detailed information on the financial and legal
consequences of non-payment, other suggestions have been put
forward for possible changes to the CEN scheme in South Australia,
which may be of interest to other jurisdictions considering the
adoption of expiation systems for minor cannabis offences. A system
involving a more graduated scale of expiation fees, including
lesser fees for offences involving very small amounts of cannabis, could
result in higher rates of expiation, especially where offences
involve young people. Other suggestions which may reduce the extent of
net-widening under an expiation approach, should that be deemed
desirable, are: inclusion of a provision for some form of cautioning
for certain categories of minor cannabis offence (although such
use of police discretion in the issuing of cautions may not be deemed
desirable where full accountability in relation to all minor
offence detections is required); dropping the offence of possession of
equipment for using cannabis, as it is a very common offence
under the CEN scheme, and is mostly detected in the context of CENs
being issued for other cannabis offences.
-- cannabis: less than 10kg
-- cannabis resin: less than 2.5kg
-- cultivation of cannabis: < 100 plants $50,000 and/or 10
years imprisonment
-- cannabis: 10kg or more
-- cannabis resin: 2.5kg or more
-- cultivation of cannabis: 100 plants or more: $500,000
and 25 years imprisonment
-- cannabis: less than 10kg
-- cannabis resin: less than 2.5kg: $100,000 and/or 15 years imprisonment
-- cannabis: 10kg or more
-- cannabis resin: 2.5kg or more: $1,000,000 and 30 years
imprisonment
2.analyses the CEN scheme, with particular reference to its
observable negative and positive impacts on: prevalence and patterns of cannabis use; the number of people coming into contact with the criminal justice system for cannabis related offences; public understanding and knowledge of the law relating to cannabis use; the amount of education undertaken to inform public understanding and knowledge of the law relating to cannabis use; reasons for not expiating cannabis-related offences; police practices and the influence of law enforcement
attitudes and policies; unit costs of enforcement (including the apparent low
level of financial savings from expiation in South Australia compared with the high level reported from the USA); employment prospects of cannabis users; cannabis market dynamics (including personal cultivation/quality of supply, source of supply, price, availability,
exploitation of personal cultivation laws by cannabis dealers and
suppliers, etc).
3.identifies and analyses trends over time, to the extent possible,
in each of the areas listed in item 2 above, since the introduction of
the CEN scheme in South Australia.
4.considers arguments and information which either support or
refute the following propositions:
a.the unintended negative consequences of the CEN scheme in
place in South Australia, such as net-widening, can be significantly reduced by fine-tuning of the system;
b.the South Australian CEN scheme has, or will, result in
significant economic savings;
c.the discontinuation of the application of criminal
penalties for simple cannabis offences, as is the case in South
Australia, has
not, and will not, lead to greater prevalence or higher
levels of cannabis use.