“It strikes me the government is having a bet each way … and guaranteeing themselves some income with no justice at all.”
According to the Criminal Procedure Regulation, a $400 penalty notice may be issued to a person carrying MDMA (3,4-Methylenedioxymethylamphetamine) “in capsule form, [if it] does not exceed a small quantity,” defined as 0.25 grams.
In any other form, such as a powder in a zip-lock bag, the instant fine can apply so long as it is less than a trafficable quantity, which is 0.75 grams.
It is understood in some cases police have found that capsules can contain more concentrated levels of MDMA than other forms of the drug.
But Mr Sutton said infringement notices provided little more than a revenue stream, and did not deter young people from taking drugs.
Among the clients on drug possession charges that Armstrong Legal services daily, Mr Sutton said the biggest fear is not death from drugs, but conviction.
“You get the law student, the medical student, the real estate agent, all in professions where they are certified to be a fit and proper person … that’s the first thing they panic over,” he said.
“Plenty of case law talks about the process of arrest as a method of deterrence and a penalty in itself, because of the fear it brings to uni students.”
The trial of on-the-spot fines is one of many actions introduced by the government to improve safety at music festivals, as well as the introduction of the new offence of drug dealing causing death carrying a maximum penalty of 20 years imprisonment.
A spokesman for the NSW government said one of the objectives of the fines was to “take pressure off the courts and allow police to concentrate on the criminals who supply illegal drugs” at festivals.
“According to the Bureau of Crime Statistics and Research most people charged with possessing drugs in 2017 were dealt with by way of a fine imposed by the court,” he said.
NSW Greens MP David Shoebridge said the fact that there was a difference between pills and powder was merely a sign of the times.
“They are based upon the current fear. The current fear is focused on pills, so there is a tougher regime for pills than powder even for the exact same drug. It’s confirmation our drug laws are not rational,” Mr Shoebridge said.
“Infringement notices inherently benefit the upper class. If you’ve got no money a couple of hundred dollars can be catastrophic, but if you’re doing okay, you brush it off and move on, removing any sense of deterrence.”
Lucy Cormack is a crime reporter with The Sydney Morning Herald.