Hard News by Russell Brown

23

Just quietly, this is a big deal

It's in the nature of politics that this morning's announcement about changes to drug laws is headed 'Crackdown on synthetic drug dealers'. The billing is not inaccurate: it's no secret that the government has been seeking to have the two most damaging synthetic cannabinoids, the ones that have been killing dozens of people, rescheduled as controlled drugs under Class A of the Misuse of Drugs Act.

That is confirmed this morning, and it means that importers, producers and suppliers of synthetics will face greatly increased penalties under law – and that Police will have search and seizure powers related to these drugs that aren't available under the Psychoactive Substances Act. The process by which the Minister of Health can bring under the control of the Misuse of Drugs Act any future drugs deemed to be causing similar harms will also be expedited.

But an accompanying announcement is the really interesting part. As I've indicated here before, ministers have been seeking to balance the get-tough part of any new approach to the synthetics problem in both a specific and general sense. Specifically, to try and ensure that people stuck using synthetics aren't further victimised by the harsher penalties for simple possession that the rescheduling implies. And generally, to do justice to its mantra that drug use should be approached as primarily a health rather than a criminal matter.

Finding the actual nature of that balance has not been an easy matter, and both official and independent expert advice has been sought on how to manage it. But this is what they're doing, per this morning's announcement:

Amending the Misuse of Drugs Act to specify in law that Police should use their discretion and not prosecute for possession and personal use where a therapeutic approach would be more beneficial, or there is no public interest in a prosecution. This will apply to the use of all illegal drugs, so there is no perverse incentive created encouraging people to switch to a particular drug.

Yes, you read that correctly. The Misuse of Drugs Act will be amended to guide Police discretion in such a way that the default will be to not prosecute personal use and possession of any illegal drug. The government is at pains to emphasise that this is not the full Portugal-style decriminalisation  repeatedly called for in last week's Report of the Government Inquiry into Mental Health and Addiction, and you may even expect reform advocates to play it down a bit. But it's a really big deal.

I've pasted in below both this morning's announcement and the accompanying factsheet. Both documents acknowledge the issue that has been posing the biggest challenge to the officials and analysts working on the new policy: the fuzzy, untidy line between possession and supply. In many cases, the users and suppliers of harmful drugs are the same people, supplying at a small scale to support their own use.

The thresholds for presumption of supply in the current law don't help. We could fill the prisons with people momentarily in possession of more than 28 grams of cannabis by deeming them presumed suppliers, but that wouldn't make sense. For the time being, the government has kicked for touch on this. There's no mention of the existing presumption-of-supply thresholds being altered.

My read, however, is that the newly-Class A synthetics have been an easier matter. A threshold needed to be defined anyway, and I gather it will be 56 grams. I'm presuming that's 56 grams of smokeable product, because 56 grams of pure AMB-FUBINACA is a lot. This is still somewhat tricky, because, as we are grimly reminded every time there is a cluster of deaths, the black market is not delivering standardised doses.

So a great deal depends on the actual exercise of police discretion, and on the actual wording of the guidance to be added to the act by amendment. We will likely learn more more, including about the potential problems of the new strategy, from the Cabinet paper that informed the decision.

The other, key part of any reform like this is resourcing. The announced $16.6 million extra to community addiction treatment services, including for an emergency "surge" response – with some more for the Drug Early Warning System the last goverment repeatedly promised but never looked like funding or delivering – has to be regarded as a mere down payment ahead of next year's Budget.

The resourcing announcement could and perhaps should have been made separately from the rest of it, but I can understand the government's desire for political cover. The Opposition is still likely to make a horrorshow out of the announcement and the legislative process for the amendment. I hope my journalistic colleagues are careful about reporting claims made.

But, for now, even given the weight of official advice behind it, today's announcement is a brave and principled move by the goverment, in the face of a likely political shitstorm. It really is a pretty big deal.

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Crackdown on synthetic drug dealers

The Government is responding to increased drug-related deaths by cracking down on the suppliers of synthetic drugs while making it easier for those with addiction problems to get treatment, Health Minister Dr David Clark and Police Minister Stuart Nash have announced.

“Under current laws synthetics and other dangerous drugs are killing people and fuelling crime while dealers and manufacturers get rich. The current approach is failing to keep Kiwis safe and can’t be continued,” David Clark said.

“It’s time to do what will work. We need to go harder on the manufactures of dangerous drugs like synthetics, and treat the use of drugs as a health issue by removing barriers to people seeking help.”

The Government has today announced a suite of measures to tackle synthetic drugs, the culmination of work initiated by then Acting Prime Minister, Winston Peters, in late July. The measures include:

  • Classifying as Class A the main two synthetic drugs (5F-ADB and AMB-FUBINACA) that have been linked to recent deaths. This will give police the search and seizure powers they need crackdown on suppliers and manufacturers, who will also face tougher penalties – up to life imprisonment.
  • Creating a temporary drug classification category, C1, so new drugs can easily be brought under the Misuse of Drugs Act, giving police the search and seizure powers needed to interrupt supply – an important part of a health response.
  • Amending the Misuse of Drugs Act to specify in law that Police should use their discretion and not prosecute for possession and personal use where a therapeutic approach would be more beneficial, or there is no public interest in a prosecution. This will apply to the use of all illegal drugs, so there is no perverse incentive created encouraging people to switch to a particular drug.
  • Allocate $16.6 million to boost community addiction treatment services, and provide communities with the support to provide emergency “surge” responses, when there is a spate of overdoses or deaths, for example.

“To be clear, this is not the full decriminalisation of drugs recommended by the Mental Health and Addiction Inquiry. These are immediate steps we can take in response to the challenge we face with synthetics. We are considering the Inquiry’s recommendations separately,” Dr Clark said.

Police targeting dealers

Police Minister Stuart Nash says frontline Police are targeting dealers and suppliers with an increased focus on organised crime and trans-national crime as a result of extra resourcing in Budget 2018.

“Misuse of drugs remains illegal and people should not be complacent about the risks of getting caught. Whether a drug user ends up getting Police diversion, goes through an alternative resolution process, or is referred for health treatment, they will still come to the notice of Police,” Stuart Nash said.

“However Police currently use their discretion when it comes to drug users who are suffering from addiction or mental health problems.

“Prosecutions for possession are decided on a case by case basis and follow prosecution guidelines from Crown Law. Fifty-two people were imprisoned for drug possession or use during 2017/18.

“I expect Police will continue to prosecute people for possession when appropriate under the guidelines announced today. It is not a black and white exercise to distinguish between users and dealers. Factors include the seriousness of the offence, if there are victims, if safety of others is at risk from the drug use, if there is public disorder, and if the evidence is sufficient to justify a prosecution.

“We are striking a balance between discouraging drug use and recognising that many people using drugs need support from the health system, or education about harm reduction. We don’t want our jails full of people with addiction problems, we want those people getting treatment,” Stuart Nash said.

More support for treatment services, community responses

David Clark says the Government is allocating an additional $16.6 million to bolster addiction treatment services.

A total of $8.6 million has been set aside for an Acute Drug Harm Response Discretionary Fund over four years, and will be available immediately. The fund will:

  • Help communities respond to acute issues such as a surge in overdoses or deaths
  • Help people make lasting change to their lives to tackle issues that might be driving their use of drugs, such as homelessness

Up to a further $8-million (over two years, $4.6 in 2018/19 and $3.4-million in 2019/20) will be used from the proceeds of crime to:

  • Establish a Drug Early Warning System to provide intelligence and data to support the discretionary fund
  • Develop and deliver ‘Addiction 101’ training in communities experiencing harm from synthetic drugs
  • Fund other Ministry of Health drug and alcohol initiatives

“There’s no question that more investment in addiction services will be required over time, but the changes we are announcing today clearly demonstrate this Government’s focus on harm reduction and supporting people to live healthier lives,” Dr Clark said.

Synthetic Drugs Crack-down Backgrounder

What prompted this response?

  • In July the Chief Coroner reported that between 40 and 45 people had died as a result of taking synthetic cannabis type drugs in the previous year.
  • Then Acting Prime Minister Winston Peters asked the Ministers of Justice, Corrections, Police and Health to instruct officials to consult the experts and come up with the solutions proven to work.

Their advice was that the current approach is not working, and that New Zealand needs to shift to a health-based approach designed to minimise harm.

As a result, Ministers now propose a two pronged health-based approach that will interrupt the supply of dangerous drugs, and get help to those who need it.

This approach:

i)              enables a local community-led ‘surge’ response with a public health and prevention focus, linked with appropriate addiction treatment

ii)             ensures that enforcement powers and penalties are focused on those who import, manufacture and supply dangerous synthetic drugs, and not the people who use the drugs themselves.

Facts on existing alcohol and other drug treatment (AOD)

1.         More than 50,000 people access addiction treatment services each year. Of these, almost all are treated in intensive outpatient services.

2.         The total cost of addiction treatment services is $150m per annum, of which around $26m is through residential care.

3.         Research indicates that nationally around 150,000 people could benefit from an intervention.

4.         There are a number of reasons why the majority of people do not seek help, including stigma, self-shame, a lack of self-awareness, and fear of arrest.

Factsheet: Police

Police discretion to prosecute

1.    The power to arrest a person or to even issue a transport infringement is discretionary. General factors considered by Police include:

  • the nature and seriousness of offence
  • the necessity to maintain public order, i.e. potential breach of the peace
  • evidential sufficiency, based on the Solicitor-General's Prosecution Guidelines
  • the public interest, based on the Solicitor General's Prosecution Guidelines
  • the suspect's behaviour and circumstances
  • any victim considerations

Police officers are also guided by the organisation’s Prevention First operating model, which focuses on preventing crime and harm, and emphasises working with partners.

2.    The changes announced today will build on the current approach to discretion. They will support a consistent Police approach to prioritise a health response over a criminal one when dealing with drug possession for personal use. However, the option will still remain for officers to prosecute when it is appropriate.

3.    The specific factors to consider in prosecution decision-making for the possession and use of drugs will be included in a guidance that Police will develop in partnership with the Ministry of Health and other partners. 

4.    Current public interest considerations for prosecution include:

  • Where there are grounds for believing that the offence is likely to be continued or repeated, for example, where there is a history of recurring conduct
  • Where the offender has created a serious risk of harm

5.    Current public interest considerations against prosecution include:

  • Where the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by an error of judgement or a genuine mistake
  • Where the offence is not on any test of a serious nature, and is unlikely to be repeated

Recent examples of Police discretion

6.    November 2018, Operation Garden, MDMA (ecstasy) and LSD

This was a prevention-focused Police operation targeting the importation of illicit drugs purchased on the Dark Net. The National Organised Crime Group worked closely with their Dutch counterparts, and NZ Customs Service, to identify New Zealanders who had been importing drugs. The majority of people identified were buying for their personal use, rather than for the purpose of on-selling for profit. For that reason, the focus was education, encouraging treatment engagement, and harm-reduction, rather than prosecution. Police visited 84 addresses across New Zealand. Some charges may follow but Police also issued a number of formal warnings to most people they visited.

7.    June 2017 to present. Te Ara Oranga pilot programme, Police & Northland DHB

one of the activities of the Police team is to drug test bailees on abstinence conditions. Often these drug users fail (65 percent) the test and are breaching their bail. Sixty percent of those who failed the test were arrested and put before the court while 40 percent were either warned or had no action taken. When deciding whether to arrest or warn, officers consider the individual’s circumstances, their engagement with treatment (provided by health services) and the seriousness of the breach. At the end of September 2018, there had been 208 Police referrals to the DHB for addiction treatment.

8.    October 2017-September 2018, Operation Notus in Bay of Plenty 

More than 40 people were arrested on firearms and drug supply charges. Dealers were connected to the Mongrel Mob. Police also identified a large number of methamphetamine users. Not all were arrested and charged. Decisions about these people factored in the level of offending, the best form of resolution, and the resources available to prosecute, as part of the Public Interest Test. During the Police follow up in Kawerau, officers worked to strengthen and build resilience in the community and work with other agencies to support those who have been affected by methamphetamine. This involved contacting all identified users of methamphetamine and providing them with guidance and advice about seeking help. There was a 34% reduction in crime in Kawerau in the three months following the termination of the operation.

New search and surveillance powers

Police have greater powers to investigate the use and supply of a substance when it is classified under the Misuse of Drugs Act (MODA). Currently, even when a substance is linked to deaths, Police are limited in their ability to investigate and prevent harm until that substance is classified under the MODA.

9.    Limitations of the Psychoactive Substances Act 2013 (PSA) are:

  • If a person has a controlled drug in their possession, they may have either committed a personal possession offence or, if they have a significant amount of the drug, a supply offence. For drugs controlled by the MODA, the amount of a drug that denotes that a person may have committed a supply offence is specifically listed in Schedule 5. There is no presumptive amount for supply of substances regulated by the PSA, which makes prosecution for supply offences more difficult.
  • If a person is suspected of being in possession of unapproved psychoactive substances for personal use only, there are no powers of search or arrest available. Search and arrest is available under the MODA. 
  • Under section 48 of the Search and Surveillance Act 2012 (SSA) an enforcement officer may use an emergency surveillance device if the offence being investigated attracts a penalty of seven years imprisonment or more, such as supply of Class A or Class B drugs under the MODA. Under the PSA, the offence of supplying drugs attracts a maximum penalty of two years, so it is not possible to investigate supply offences using an emergency surveillance device. However, a pre-planned device warrant can be applied for under section 45 of the SSA.
  • Sometimes, during the course of an investigation, if a search of a place is not carried out immediately, evidence relating to a suspected offence may be destroyed. Section 77 of the PSA, ‘warrantless power to enter and search’, specifically excludes private premises from being subject to search. Many activities around supply and use of synthetic cannabinoids, and a number of the related deaths, have occurred in homes, so limitations around search of homes can impede investigation. When investigating offences relating to some drugs classified under the MODA, private premises are not excluded from warrantless entry and search if the officer has reasonable grounds to believe an urgent search is required to prevent evidence from being destroyed. 
  • In the PSA there is no provision that facilitates domestic controlled deliveries of drugs, or protections that would enable the deployment of undercover officers against suppliers. These protections are available when investigating many offences related to drugs classified under the MODA, and are often critical to the success of investigations/operations targeting importers, manufacturers and suppliers of illicit drugs.

Distinguishing between users and dealers

Distinguishing between users and dealers/suppliers of illicit substances is not a black and white exercise. The complex interplay of a number of factors includes a person’s conduct or behaviour, the context of that behaviour, their intent, and the amount of the drug involved. Making this distinction can be particularly complex when a person is both a user and supplier.

10.  Information Police take into account includes:

  • whether there is evidence that the person offered to sell the drug to another person
  • the nature of the relationship with the ‘buyer’ – i.e. is the ‘buyer’ a stranger?
  • whether there is evidence of multiple buyers, multiple suppliers, importation and/or a clandestine lab
  • whether the person obtained profit
  • whether the amount of the drug involved meets the threshold for presumption of supply. There are different amounts for different drugs. For example, 28 grams for cannabis plant; half a gram for heroin. These are found in Schedule 5 of the MODA.

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