Introduction to Drug Offences

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 836-860; 862-864.

Introduction

[1] The criminal law relating to drugs is established in statute, rather than the common law.

Drug legislation often seems to abrogate or neglect the general principles of criminal law, evident particularly in the following:

  • ‘Deemed drug’ provisions where a substance is considered a drug when it is not.
  • ‘Deemed trafficking’ provisions which reverse the burden of proof by requiring those possessing more than a particular quantity of a drug to prove that they are not suppliers.
  • Provisions which impose liability for what should be regarded as mere acts of preparation, beyond the law of attempts.

Identifying the Drugs Problem

[2] The concept of harm is difficult to establish in terms of the drug problem, making it distinguishable from other criminal behaviour. When a person chooses to consume marijuana, what harm is there?

  • It could be argued that drug use causes harm by bringing about 'diminished social productivity.
  • ‘Harm to others’ in the forms of the costs of medical treatment to drug users etc.
  • However, note that the above two points apply to the use of legal drugs such as alcohol and tobacco.
  • Other explanations do not justify them in any form of rational policy analysis, but instead in terms of Western cultural constructions (ie, drugs are 'immoral').

This is discussed by Mugford, who identifies three reasons why there has been a selective criminalisation of drugs:

  • Economic - Western governments banned drugs which were mainly produced in third-world countries because the Western governments were unlikely to profit from their decriminalisation.
    • In other words, Australia had no marijuana industry, but had an alcohol industry. Therefore alcohol was not criminalised but marijuana was.
  • Political - banning of drugs had a racist element to it: Western governments ban drugs commonly used by the minorities.
    • In other words, opium and cocaine, which were used mainly by black and Asian people respectively, were banned whilst alcohol and cigarettes (used by white people) were not.
  • Cultural - Cultural perspectives determine what is an 'acceptable pleasure', and the Western culture determined that the drugs of third world countries are not an acceptable pleasure.

Drug Related Harms

[3] In Australia, the approach to illicit drugs is harm reduction, rather than use reduction.

  • Harm reduction: focusing on reducing the adverse health, social and economic consequences of illegal drug use, rather than eliminating drug use per se.

This policy, as opposed to 'prohibition policy' (which focuses on eliminating use), was created as a response to the HIV epidemics caused by injecting and sharing of needles.

  • It is important to consider that the health problems can a product of the criminalisation of drugs, rather than the substance itself (eg, people not seeking help because they are scared of being prosecuted for using).
  • Many of the harms are concerned with the method of consumption (eg, needles).

Conventional research has classified the harms associated with illicit drug use under the following headings:

  • Health: for example, mortality rates.
  • Economic: health costs, law enforcement costs.
  • Crime.
  • The growth of organised crime.
  • Police corruption.

Health

[4] Ironically, 96% of drug-related deaths are associated with tobacco or alcohol, which are the legal drugs.

  • Illegal drugs constitute less than 4% of deaths.
  • The stats show that the use of most illegal drugs is quite low in Australia - only 0.2% have used heroin in the last 12 months. However, marijuana has been used by about a third of the Australian population.

The act of injecting poses the greatest health risk, and it therefore influences the legal classification of illicit drug use. The risks of injection include:

  • Consequences of sharing injecting equipment.
  • Contamination of drugs with bacteria, viruses, fungi, parasites etc.
  • Blood related health risks most important (eg, AIDS, hepatitis B and C).

Once again, the act of criminalisation plays a part in the move towards injecting as a method of consumption: criminalisation of drug use drives up the price of drugs and injecting is the most cost effective method of use (since a smaller and thus cheaper amount is required).

  • Note: The wave of HIV that has been expected among injecting drug users has not occurred in Australia, due to targeted education programs (eg young people, sex workers) and needle exchange programs (free needles given out).

Heroin

[5] Heroin is manufactured from morphine, a drug derived from the opium poppy. Most of the heroin in Australia comes from the Golden Triangle (Myanmar, Laos and Thailand).

  • Used hygienically and in pure form are not especially toxic to the body and appear tocause little damage to the users body organs and tissue.
  • However, anyone who uses an opiod drugs like heroin for more than a few days is very likely to become dependant on the drugs’.

Heroin use is fairly small in Australia, about the rate as most European countries. It is usually sold in capsules, and the prices increased substantially from $20 a cap in 1999 to $50 in 2004.

  • Overdose (OD) from heroin causes respiratory failure, and then death.
  • Death from OD rose from 1964 to 1999 to 1116 deaths per year; but declined since to 386 in 2001 (which is a very rapid decline) and stayed at that level since.
  • Research shows that purity of the drug or even amount is not the main reason behind an OD - often the related circumstances are to blame, such as the fact that the user was alone of afraid to seek help.

Cannabis

[6] Cannabis, or marijuana, is the most widely used illicit drug in Australia. About a third of all Australian over the age of 14 have used cannabis during their life.

  • It is probably the safest of all illicit drugs, even safer than some legal drugs such as alcohol and tobacco.
  • However, there are some long term effects of regular use, such as:
    • Risk of respiratory diseases, lung and throat cancer (if smoked).
    • Cognitive impairment.
    • Difficulties in controlling the use (ie, psychological dependence).
    • Suggested to increase the risk of schizophrenia and depression (thus influencing criminal cases related to mental illness).

Stimulants: Ecstasy and Amphetamines

[7] Stimulants are party drugs mainly used by young people. In Australia, ecstasy and amphetamines are used approximately by 3.5% and 2.3% respectively of persons aged 14 years or more in the preceding 12 months.

  • Lower proportions hallucinogens.
  • Main risk is an overdose.

Fear of prosecution for minor drug use and possession offences has been identified as contributing to the reluctance of some people to call an ambulance in the event of an overdose.

  • The police guidelines instruct that officers are encouraged to exercise their discretion not to prosecute users for administration offences and minor possession offences.
  • The primary role is to ensure the safety of ambulance officers, the victim and anyone else present.

Steroids

[8] Steroids, which are drugs taken for athletic purposes, are treated entirely differently. They are considered a health problem rather than a criminal problem. As a result:

  • Steroids are not dealt with by the Drug Misuse ad Trafficking Act, but by the Poisons and Therapeutic Goods Act.
  • Steroids are not currently included in the provisions of the Criminal Code.

Economic Cost to Society

[9] The economic cost of illicit drugs constitutes 14.6% of the total tangible cost on all drugs (tobacco at 56% and alcohol also at 14.6). The total tangible costs for all illicit drugs is estimated to almost $7 billion ($6 915 000 000).

  • This encompasses drug rehab programs, prison costs, health costs etc.
  • Almost half the costs for illicit drugs were the costs of law enforcement $3.8 billion).

Drugs and Crime

[10] There is a strong connection between illicit drugs and crime.

  • Many people commit property crimes such as robberies to finance their drug habits (heroin).
  • However, this is not always the case - many have legitimate sources of income which can finance their drug habits, especially more middle class users.
  • Drug dealing is another common way of using crime to finance one's drug habit (as opposed to property crimes).
  • 'State payments' (such as welfare etc) are commonly used to finance people's drug habits.
  • Other ways to finance the habit include prostitution, pawning of assets and 'avoided expenses' (ie, not paying for something, like getting a free meal).

Police Corruption

[11] There is evidence that the police corruption is very common in drug cases. In fact, most of the corruption in the police force is due to drugs, and is considered as a social harm of drug use. The Royal Commission listed the following examples of corruption relating to drugs:[12]

  • ‘Planting’ of drugs on suspects.
  • Recreational use of illicit drugs by police .
  • Interference in crim justice processes and prosecutions.
  • Theft and extortion.
  • Protection of drug trade (regular payments by suppliers in exchange for lack of police intervention).
  • Drug trafficking (selling seized drugs).

Police bodies have numerous external review bodies focused on eliminating corruption, but they cannot neutraise all the potent corrupting effects.

Harm Minimisation Policies

The Drug Summit

[13] Politicians were forced to sit and listen to research regarding drug abuse, treatment, management, training and education.

  • The summit recommended that legislative principles be enacted to guide police in the exercise of their discretion in relation to illicit drug enforcement.
  • The government allocated a budget of $500 million over four years.
  • Many harm minimisation policies came out of this summit.

Pharmacological Programs

[14] Pharmacological treatment is most widely used treatment programs for illicit drugs. The most effective forms of treatments are:

  • Methadone treatment,
  • Needle exchange programs.

Methadone Treatment

This is a treatment for opiod drugs (eg, heroin). It involves the administration of methadone (a legal heroin alternative) to heroin users in safe conditions, in an attempt to stop them from using heroin.

  • This stops the users from buying unsafe heroin off the black market and inject it in unsafe conditions.
  • The problem is that many people simply don't like methadone - it is not a valid replacement for heroin for all of the users. They eventually go back to using heroin.

Still, research shows that:

  • Methadone treatment is remarkably effective.[15]
  • Methadone maintenance treatment reduces heroin use and crime.[16]
  • Methadone leads to an improvement in health of clients, reduction in spread of infectious diseases, reduction in death and crime associated with drugs and an improvement in social functioning.
  • Randomised control study of prisoners on methadone have demonstarted:
    • Significantly lower rates of heroin use in prison.
    • Reduced mortality, reincarceration rates and hepatitis C infection.

Needle Exchange Program

Needle exchange programs have been effective in the prevention of HIV in Australia and reducing injecting risk-taking behaviour.

  • Australia has lowest level of HIV in the world.
  • Prevalence of HIV among injecting drug users remains below 5%.
  • However, there are no needle exchange programs in Australian prisons. Thus drug use in prison and associated health risks remain a serious problem.

Safe Injecting Rooms

[17] A safe injecting room is a place where drug users come to and inject under safe conditions (ie, medical personnel are there who ensure that the needles are clean and that medical attention is provided. A few were in existence (illegaly) in Kings Cross. A committee was set up to consider the benefits and detriments of such rooms:

  • Arguments for:
    • Potential to reduce fatal overdoses.
    • Reduce transmission of blood-borne vital infections.
    • Better access to primary medical care.
    • Improve likelihood of accessing drug-treatment programs.
  • Arguments against:
    • Could lead to an increase in drug use.
    • Lead to the assumption that drug use is condoned.
    • Congregation of drug users.
    • Increase in dealing and opportunistic crime.

The committee failed to make an overall recommendation. A bit before the Drug Summit, such a room (The Tolerance Room, in Wayside Chapel) was raided by police, although no charges were laid. It was discussed at the Summit where it was concluded that such rooms should be supported. As a result, amendments were made to the Drug Misuse and Trafficking Act to allow for such rooms (where licensed) without persecution for possession etc.

  • A license was given out and a trial was established.
  • There was some difficulty because the original applicants (a church organisation) withdrew on upon the request of the Pope, but eventually the trial was conducted.
  • In 2010, the injecting room ceased to be 'on trial', and is now fully established.
  • Injecting rooms exist in other places worldwide.

Drug Courts

[18] The Drug Court is a recent import into Australia (governed by the Drug Court Act 1998 (NSW)). The aims of the drug court are:[19]

  • (a) To reduce drug dependency of eligible persons.
  • (b) To promote the reintegration of drug dependent persons into the community.
  • (c) To reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies.

The court aims to replace custodial sentences with rehabilitation programs.

  • Eligible persons to be tried in the Drug Court are those charged with an offence who are highly likely to be sentenced to full-time imprisonment, intend to plead guilty, and are dependent on the use of prohibited drugs.
  • Once eligibility is determined, the person is admitted to Drug Court. The judge sentences them, then suspends the sentence.
  • The Drug Court then sets out a rehabilitation program which is closely monitored - sanctions apply to breaches of the program.
  • If the defendant graduates successfully from the program, the court generally does not impose a custodial sentence.
  • If the defendant breaches the program, the sentence is imposed.

Research shows that the drug court does work for some people. However, it is both very expensive (much more than methadone treatments), and can be a bit discriminatory and counterproductive to those not within jurisdiction.

MERIT

[20] The Magistrate’s Early Referral into Treatment Program (MERIT) provides an opportunity to work on a voluntary basis towards rehabilitation as part of the bail process. It is only offered to adult defendants whose drug dependence comprises a factor of their criminal behaviour (eg, people who steal to finance a drug habit).

  • The program required the amendment of the Bail Act 1978 (NSW) - s 36A now allows entry into MERIT.
  • Eligibility requirements:
    • The defendant must be suitable to be released on bail.
    • The defendant must have a demonstrable and treatable drug problem and be charged with a drug related offence (that is not indictable nor an offence involving violent conduct or sexual assault).
  • If accepted into the program, the magistrate grants bail and the person enters the program for at least 12 weeks. When it ends, the defendant enters a plea, is tried and sentenced.
  • Satisfactory completion of the program will be taken into account as a mitigating factor when sentencing.

Cannabis Decriminalisation

[21] There has been a call to decriminalise cannabis, or at the least, discontinue convictions for simple, personal use or possession. The rationale is as follows:

  • Whilst not being a harm-free drug, the most probable health risks of cannabis are considered to be small to moderate.
  • However, the negative consequences of the applying the criminal law against cannabis users may objectively be greater than these health risks.
    • Convictions, even for minor offences, are likely to lead to further involvement in the criminal justice system, negative impact on employment, strain on family relationships etc.

The alternative is an infringement notice or expiation scheme for cannabis possession - an on-the-spot fine which does not include a criminal record. These have been adopted in SA, ACT and NT. In New South Wales, the 'Cannabis Cautioning Scheme' (CCS) has been adopted:

  • Totally dependent on police discretion.
  • Eligibility requirements:
    • Adult.
    • Possession of no more than 15 grams, only for personal use.
    • Must admit the offence and have no prior convictions for drug offences or specific offences involving violence or sexual assault.
    • Must not have been cautioned twice already.
  • Even if the defendant satisfied the requirements, it is still the police's discretion.

The Netherlands is the most common example of cannabis decriminalisation - it is in fact very similar to the expiation notices of SA.

Medical Use of Cannabis

[22] There is a long history of cannabis being used for medicinal, pain-killing purposes. Studies have shown it may be a better pain-killer than current (morphine-based) pain-killers.

  • Recommendations have been made to issue 'medical certificates' for certain sick people (particularly HIV and cancer patients, who really benefit from medicinal cannabis) to allow them to acquire certain quantities of cannabis legally.
  • However, no steps have been taken to implement this initiative, meaning cannabis is still completely illegal - even in medical use.

Medicinal cannabis is implemented in California.

Drug Law Enforcement

Effect of Criminal Prohibitions

[23] Criminalising drugs by reducing supply does not reduce supply. The price is driven up because the risk supplies have to undergo in order to supply the drugs is higher. This leads to a monopoly for the willing few who supply drugs under risk of prosecution.

  • Dealing with the illicit drug market through criminal sanctions effectively imposes a ‘crime tariff’.
  • The demand for narcotics is regarded as relatively price elastic.
  • As such, there is a greater potential gain to the seller (in line with an increase in risk).

Targeting Supply

[24] There is little prospect that supply of drugs can eliminated. In addition, with demand for drugs believed to be relatively inelastic, enforcement strategies that ultimately increase price are likely not to have any real effect on consumption.

  • Overall, concentrating on the supply of drugs has proved pretty ineffective - prices do not go up after seizure of big shipments, demand is still just as strong, and there are always other shipments to replace those seized.

Another flawed enforcement strategy is concentrate on eliminating the few big suppliers of drugs (termed 'Mr Bigs'), which would lead to the collapse of the entire industry.

  • However the Australian drug market is not really run by a few Mr Bigs. It is run by many smaller dealers or organisations. The drug trade in Australia not characterised by durable and stable organisations.
  • An example of this is the Richard Buttrose case - the media had referred to him as the 'King of Cocaine' – the epitome of a 'Mr Big' of cocaine in Sydney.
    • However, the footage from Channel 9 showed him doing street-level deals himself (being the lowest form of dealing). He would also cut and bag the cocaine himself (another example of being a very low level dealer).
    • Although now in custody, his position in the cocaine market has already been filled by others.

Policing and Harm Minimisation

[25] Despite the rhetoric of focusing on the ‘supply-side’, law enforcement is still largely directed at the users of illegal drugs. It is estimated that 82% of arrests were consumers.

Zero tolerance and demand-side policing can lead to significant health problems.

  • Injecting conditions become less sanitary.
  • Risk of being busted means that users are less likely to carry injecting equipment, more likely to reuse and share equipment etc.
  • Increase in price leads to the manufacture becoming more haphazard and dangerous

A critical analysis of harm minimisation and policing was conducted by S James and A Sutton:[26]

  • Majority of rank and file police had no understanding or training in harm minimisation. Hence, they should develop a "taxonomy of harms" to guide law enforcement.

Elimination at Source

[27] This enforcement strategy focuses on an earlier stage in the drug network than supply, particularly addressing the cultivation and production in other countries. However, US programs in the Golden Triangle have generally failed. This is because:

  • Drug crops are more lucrative hence small farmers have a strong economic incentive to continue production.
  • Governments are weak in the growing areas which are mostly rural and controlled by ethnic groups.
  • All drugs have several source countries and some of the crops can be grown in many climates.
  • In many countries drug cultivation is a traditional economic activity and to change to another crop is costly, and requires long term commitments to upgrade farmer skills.

The Historical Dimension

[28] As mentioned before, drugs legislation has its roots in statutory legislation, not the common law. NSW legislation has two roots:

  • Provisions regulating access to drugs for medical purposes – namely the licensing system, with the criminal law playing only a background role: Poisons and Therapeutic Goods Act.
  • General criminal prohibitions intended to discourage non-medical use of drugs: Drugs Misuse & Trafficking Act.

In the course of the first half of the 20th century, the government assumed more and more control over drugs.

  • Drugs became increasingly 'more illegal' and moved from being considered health problems under 'poison' acts to actual criminal problems under drug acts.
  • There is evidence that suggests that initial bans were racially motivated.
  • International influence played a key role.

The ban on heroin occurred in 1954, and cannabis in 1956. It should be noted that these bans are very recent.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 836-7.
  2. Textbook, pp. 837-8.
  3. Textbook, pp. 838-9.
  4. Textbook, p. 839.
  5. Textbook, p. 840.
  6. Textbook, pp. 840-1.
  7. Textbook, p. 841.
  8. Textbook, p. 842.
  9. Textbook, p. 842.
  10. L Maher et al, 'Property Crime and Income Generation by Heroin Users', (2002) 35(2) ANZ J of Criminol 187 in Textbook pp. 842-4.
  11. Textbook, pp. 844-5.
  12. Royal Commission into the NSW Police Service, Final Report, Vol I, 1997 in Textbook, pp. 844-5.
  13. Textbook, pp. 45-6.
  14. Textbook, pp. 46-7.
  15. Alex Wodak, 'Prescribing Heroin: nothing to fear but fear itself' (1998) 168 MJA 590 in Textbook, p. 846.
  16. W Hall, ,Methadone Maintenance Treatment as a Crime Control Measure', (1996) NSW BOSCAR Crime and Justice Bulletin No 30 in Textbook, p. 846.
  17. Textbook, pp. 848-9.
  18. Textbook, pp. 849-51.
  19. Drug Court Act 1998 (NSW), s 3.
  20. Textbook, p. 851.
  21. Textbook, pp. 851-3.
  22. Textbook, pp. 853-4.
  23. H Packer, The Limits of the Criminal Sanction, (1968) in Textbook, pp. 854-5.
  24. Textbook, pp. 855-6.
  25. Textbook, pp. 856-7.
  26. "Developments in Australian Drug Law Enforcement" (2000) 11 (3) Current Issues in Criminal Justice 257.
  27. Textbook, pp. 857-8.
  28. Textbook, pp. 858-9.
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