“Cannabis caution” and other civil penalties for minor criminal offences in New South Wales
If you get a Court Attendance Notice in NSW, you are required to attend court. If you should plead or be found guilty in relation to the offence(s) on that notice, then you will get a criminal record unless you receive a section 10 sentence. (For more information please see my earlier article, The elusive and sought after “section 10” in criminal and traffic prosecutions in NSW.)
If you are not required to attend court, then the offence will not go on your criminal record.
Police discretion for minor offences
Often a person will receive a notice for a minor offence and these matters are then dealt with by a fine, without having to proceed to court. Ultimately, while it could be dealt with within the criminal jurisdiction, the police officer has used their discretion to deal with it outside of court by way of a civil penalty.
Common examples of offences dealt with in such a way include negligent driving and offensive language or behavior in a public place.
“Cannabis caution” for possession of less than 15 grams of marijuana
Another such example is when a person has no criminal record and has possession of less than 15 grams of marijuana. In such circumstances the police have the discretion to provide a “cannabis caution”, which avoids a criminal record.
The cannabis caution is purely a warning and does not entail a penalty. While there are no hard and fast rules governing the number of times police can use their discretion to issue a cannabis caution to the same person, anecdotally there appears to be a tendency to apply a “three strikes and you’re out” rule, so that police may issue one cannabis caution to an individual, then possibly a second one.
However, it is unlikely that a third cannabis caution would be issued. The decision will be influenced by the subjective features and context of each incident, such as how long it has been since the last caution, the attitude of the person and their criminal record.
Risks involved in challenging a penalty notice
It is important to note that if you decide to challenge an offence that has been issued by way of a ticket or penalty notice, you will be required to attend court. This opens you up to the risk of the offence being confirmed by the court and the court imposing a penalty which is higher than the one you have already received, as well as the matter going on your criminal record.
What this means is that it is worth weighing up these risks carefully before deciding to challenge an offence in court. If you decide to challenge the offence, you should seek legal advice to ensure that such a course of action is in your best interests.