Diversion from the criminal justice system

Recently there have been several initiatives that aim to divert some minor drug offenders from the criminal justice system (through cautioning), and to encourage drug dependent offenders into treatment programs (through drug courts).

Cannabis cautioning

NSW police have an official discretion to caution adults for minor cannabis offences, and to caution people under 18 for minor offences involving any prohibited drug.

For adults

The official police guidelines recommend that police officers use their discretion to issue an official caution, rather than charge a person over 18 who is found:

  • in possession of 15 grams or less of cannabis, or
  • using cannabis, or
  • in possession of smoking implements (a pipe or bong).

There is no need for the police to weigh the drug, as long as they are satisfied that the amount involved is under the 15 gram limit.

The cautioning scheme for adults does not include cultivation of cannabis, even for small numbers of plants.


The guidelines provide that to qualify for a caution, the person must:

  • admit the offence
  • have no criminal history for drug offences (including possession), sexual assault or other offences involving violence
  • have received no more than two cannabis cautions previously
  • establish their identity (normal checks on identity will be carried out)
  • satisfy the police that the cannabis is for personal use only
  • have no other charges that must be determined in court anyway. (For example, if the police find a few grams of cannabis in the pocket of a person charged with stealing, both the theft charge and the drug possession charge will go to court.)

As well, there is an overriding discretion in the hands of police. So even if these guidelines are satisfied, the police can still decide to prosecute.


Cannabis cautions to adults are issued on the spot. The police will give the person a cannabis cautioning notice, a pamphlet about the legal status of cannabis and information on the health consequences of cannabis use. Their name and address will be recorded on the police computer system.

If an adult receives a second cannabis caution, they are referred to a compulsory drug education session.

Drug offence cautions for people under 18

For people under 18, the discretion to not prosecute applies to minor offences involving other drugs as well as cannabis, and to cannabis cultivation.

For young people, the drug cautioning system is part of a range of alternative systems under the Young Offenders Act 1997 (NSW) to divert young people from courts and prisons. Those alternatives are formal police cautions, warnings and conferences (where the offender and the victim meet to discuss the impact of the offence and determine an outcome plan). Conferences for drug offences are rare, and are only used where there is another offence that is to be dealt with at a conference.

What offences can be dealt with?

The following drug offences can be dealt with under the Young Offenders Act:

  • possession of 15 grams of cannabis or less
  • possession of smoking implements
  • cultivation of no more than five cannabis plants
  • possession of no more than one gram of heroin, cocaine or amphetamine
  • possession of no more than 0.0008 grams of LSD
  • possession of no more than 0.25 grams of ecstasy
  • use of a prohibited drug.

As for adults, the police must accept that the drugs are for personal use rather than supply, the young person must admit the offence, and there must be no other offences committed or suspected that would require the person to go to court anyway. The person has the right to obtain legal advice before making an admission of guilt.


A juvenile caution is not administered on the spot, but a week or so later at a police station or another place (for example, a youth centre). The caution can be given by a police officer or someone else (such as a drug and alcohol worker).

There is no limit on how many juvenile cautions can be issued to a young person, and no strict guidelines about prior criminal records. But cautions are discretionary - so presumably, the more cautions a person has, the less likely it is they will get a caution again.


Warnings can also be used. A warning is less formal than a caution, and is issued on the spot by a police officer. The young person does not have to admit guilt, but they must supply their name and address.

Drug Courts

There are presently two types of 'drug court' programs in NSW:

  • the Drug Court of NSW
  • the Local Court's MERIT scheme.

Previously there was also a Youth Drug and Alcohol Court but it was abolished in 2012.

The Drug Court of NSW is the fist drug court to be trialled and evlauated in Australia. The court began operation in Parramatta in 1999. It now also sits at Toronto and in Sydney.

The court's statutory object is to reduce drug-related criminal activity by diverting drug dependent offenders to rehabilitation programs.

The Drug Court is a sentencing court, with the jurisdiction of both the Local Court and the District Court. Offenders are referred to the Drug Court by other courts.

To be eligible to be dealt with by the Drug Court, an offender must:

  • be apparently dependent on a prohibited drug (not alcohol)
  • plead guilty, and
  • have been charged with an offence which is 'highly likely' in the circumstances (for example, the offender's prior record) to result in their imprisonment.

If a person is charged with an indictable offence under the Drug Misuse and Trafficking Act 1985(NSW) which cannot be dealt with summarily (for example, supply of a commercial quantity of a prohibited drug), or an offence involving 'violent conduct' or sexual assault, or if they suffer from a mental condition that might affect their participation in the project, they are not eligible for sentencing by the Drug Court.

Alternatives to punishment

The Drug Court can, instead of imposing a punishment, require an offender to participate in an ongoing rehabilitation program, under court supervision. Unlike a conventional court, the Drug Court encourages a collaborative involvement of judge, defence lawyer, prosecutor and clinical staff in determining how a matter is dealt with. Typical program orders might include attendance at counselling or other therapy sessions, and regular drug testing. The Court can also impose conventional punishment.

Action by the court

The offender must agree to the program of treatment and conditions proposed by the court. The conditions of a person's program can be varied by the court.

As well as determining a program for the offender, the Drug Court must also impose a penalty for the offence, but it immediately suspends the sentence. If the offender satisfactorily completes the program, that will be taken into account in determining the final sentence, such as a good behaviour bond. The final sentence cannot be higher than the original suspended sentence.

The MERIT scheme

The Local Court program for diversion to treatment scheme is called MERIT (Magistrates' Early Referral Into Treatment). MERIT is not available at every Local Court, but is being extended to Local Courts around NSW.

MERIT allows for a case to be adjourned, generally for three months, while the defendant undertakes drug rehabilitation. Participants are granted bail with attendance at MERIT program activities being a condition of bail.

Suitable MERIT candidates are not required to enter a plea to the charges before being accepted into the program.

Participation in the MERIT program is voluntary. A person assessed as suitable can elect not to participate in the program and instead have their matter referred back to the Local Court for determination or sentencing.

Bail a prerequisite

MERIT participants are granted bail, generally for three months, with attendance at MERIT program activities being a condition of bail. Generally, the defendant will be required to attend court about four to six weeks after commencing treatment to monitor their progress.

Failure to attend is reported to the court, but is not treated as a breach of bail conditions. Similarly, failure to respond to treatment, or to undertake treatment, does not result in any punishment, or any additional penalty for the offence charged.


Suitable candidates who choose to participate are offered drug treatment considered appropriate to their situation, including medically supervised detoxification, home detoxification, methadone or other pharmacotherapy, residential rehabilitation, and/or counselling.

Completion of program

Satisfactory completion of the program will be reported to the court and will be taken into account in determining penalty.

Who can participate?

Potential candidates for participation in the MERIT program must:

  • be suitable for release on bail
  • be over 18
  • not be charged with assault, sexual assault or a wholly indictable offence
  • have a demonstrable and treatable illicit drug problem
  • be assessed by a court-based clinician as suitable for the program
  • be approved for participation by the magistrate.