Crackdown on synthetic drug dealers
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.