This article is part of High Season, VICE's newest series breaking down all the ways Australia's drugs laws are broken. Read the rest here.
Greg was 18, recently graduated from one of Australia’s most elite private schools and, like thousands of other school leavers, he was off celebrating his new found freedom in Byron Bay on Schoolies. He wasn’t the only reveller using drugs that week, but he was one of the unlucky few who got caught—walking down the town’s main strip with a large stash of MDMA caps, weed, and illegally obtained prescription drugs.
“I really had no idea basically how severe it can be… I sat in the cell for like eight hours with no contact, they were trying to scare the shit out of me,” he told VICE. “There was blood all over the adjacent cell. I've got no shoes on, no shoelaces, they've taken my belt for a suicide risk. I'm sitting there in the cell, off my head on drugs as well, with no contact.”
For a young rich kid, it was probably the closest you could get to ruining your life. Considering the amount of drugs found on him, Greg could have ended up behind bars on drug supply charges. Instead, he received no jail time and no criminal record. How?
“I'm a white privileged private school boy, you know what I mean?” Greg says, frankly. “If you've got a good lawyer, you've got good references, and you present yourself well you’ll get off.”
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Greg got off with a Section 10, which refers to the leniency provisions contained within the NSW Crimes (Sentencing Procedure) Act 1999. Essentially, even if someone is found guilty, the court has the power to let them go, factoring in things like: “the trivial nature of the offence” or “the extenuating circumstances in which the offence was committed” or “the person’s character, antecedents, age, health and mental condition.”
But there's growing concern in the legal community that the likelihood of getting a Section 10 is determined more by your parents' bank account, than the chance you'll reoffend.
Figures published last year show that Mount Druitt, a suburb in Sydney’s west, had the toughest local court when it came to Section 10s. Only seven percent of defendants got them—far below the state average of 25 percent. Compare this with Waverley, a suburb overlooking the city's eastern beaches, where 33.2 percent of cases seen by the local court ended in a Section 10.
The difference? The average weekly income in Waverley is more than double Mount Druitt’s, according to the 2016 Census. And, according to the Daily Telegraph, most defendants in Waverley show up with a lawyer.
“The reason there are more Section 10s given by courts such as Waverley when compared to Mount Druitt is because there's a failure in the legal system,” says Thomas McLoughlin, the director of the Sydney University SRC Legal Service, which provides free advice and representation to all undergraduates.
“The sentencing criteria is universal. It's unequal access to good representation and good legal advice. The courts are not discriminating based on socioeconomic status, the system is... You can't be a full citizen with in this society without knowing your legal rights or having access to advice.” Basically, the court goes through the same checklist for everyone. But top lawyers have the time, and the expertise, to navigate this and get their client a Section 10.
By McLoughlin’s estimates, about 80 percent of students represented by the SRC legal service receive a Section 10. “Routinely they are young, usually first time offenders, and well regarded by family and friends. They can generally get good references,” he explains. Some are also studying in competitive courses, where a criminal conviction can rule you out of ever practicing, like veterinary science, medicine, or law.
“If society has invested a lot of time and effort in educating a university student, and it's their only offence, where is the benefit to society in convicting them and thus affecting their career trajectories and their service to society for one mistake?” McLoughlin asks, rhetorically.
James was a law student when he was caught with three caps and a tab of acid at Splendour in the Grass eight years ago. Nearing the festival gates he spotted a sniffer dog and told his friends to turn back. Unfortunately, there was an undercover cop nearby. All of his friends merged into the thronging crowd, downed their drugs, and escaped arrest. James wasn’t so lucky.
“I wasn't particularly stressed because I was just under the assumption that with a small amount of drugs like that a Section 10 is fairly common place,” he told VICE. “I spoke to my parents about it they were very, very angry but agreed to help me with some of the legal costs involved, which then made me feel even more confident I guess that it would all go away.”
But it didn’t go away. “Not one of the 300 people arrested at that year’s festival was given a Section 10,” James says.
“Unfortunately, the Byron Magistrates Court judge decided that he was sick of ‘his Byron Bay’ being used for drug use.”
James distinctly remembers the judge telling them that “no one will be getting a Section 10. Maybe if you had an order of Australia, I'd consider it. But I don't think any of you would have one of them!”
“We were all 19 years old,” James says, “of course [we didn’t] have an Order of Australia."
With his parents’ help, desperate to keep his chances of practicing law alive, James appealed to the district court. Despite strong character references, his conviction was upheld on the grounds that “it would be unfair for the 40 or so people who [also] appealed to have their convictions overturned when the other people were still convicted.”
By this point James’s parents had already spent $15,000 on legal fees and no longer had the money to get the matter heard in the New South Wales Court of Criminal Appeal. Unlucky again. All the Splendour punters with the money to pay lawyers for another appeal, 10 of them in total, got their charges dropped.
“It's really clear from what the lawyer communicated to me in the aftermath that those with the means to appeal it to the highest court got to walk away without a conviction," James says. "As I had expected to at the beginning."
This year, VICE has been exploring all the ways Australia’s drug laws are broken. Section 10s are just one part of the problem—that rich kids who can afford good lawyers stay out of the system, while young people without money get sucked into the cycle over minor possession charges.
“It's definitely a hierarchical system based on privilege especially in the court system,” Greg tells me, sitting on the lawn of one of Sydney’s top universities.
Lawyer Edward McMahon, who’s worked extensively with underprivileged and Indigenous clients, agrees with Greg. “The ability to put materials before the court that you have prospects of rehabilitation will improve sentencing outcomes," he explains.
"Education, employment prospects, access to comprehensive rehab supports—all such materials are more easily accessible to the white and the rich."
As McMahon points out, young white relatively wealthy uni students are far less likely to get arrested for drugs in the first place. If you look at the statistics—James and Greg are just kind of unlucky they got caught. “Sentencing outcomes could be perfectly equal and there'd still be a huge problem,” says McMahon. “The criminal justice process begins with an arrest, and the poor are more likely to be arrested."
"This is for various reasons—more likely to linger in public spaces, more likely to be negatively stereotyped in the exercise of police discretion (e.g. to stop/search), more likely to live in a heavily policed area," he continues, "If you or I, or any white middle class university mate, lived in Mount Druitt, we'd be far more likely to have a drug conviction.”
Since his Section 10, Greg has completed his good behaviour bond. The only impact his ordeal had on his life since is that he was barred from entering the United States. It hasn’t really changed the way he thinks about drugs.
“I personally really love drugs so it's hard. What I did learn from it? To be more careful, it's not even a sense of don't do them, which could be a bad thing,” he tells me. “I learnt to just to be really careful with drug taking: use testing kits, make sure that the drugs you're purchasing are from reliable sources. And don't do it in stupid places like on the middle of the street in the middle of Schoolies. Go do it at a house. Don't walk around with lots of drugs in your pockets, don’t. Just take what you need for the night at home.”
After his conviction, James spiralled into depression and heavy drug use triggered by the public shame and an end to his goal of becoming a lawyer. Slowly though, he rebuilt his life and now works in advertising in Sydney—an industry he acknowledges, ironically, has a heavy drug culture. “I ended up just getting caught in such a rut up in Brisbane, that was why I moved to Sydney," he says. "It was a speed bump in my life that I've overcome. It's probably set me back a couple of years. It wasn't life ending for me, it was life changing.”
"I got through it and I’m on the other side but being caught again is something to that totally and constantly scares me... I guess I've been like lucky that I've been able to use the privileges I have to get a second go at things."
The problem is, in Australia's system, not everyone gets a second go.
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