Chapter 10: Dealing

Background

The Misuse of Drugs Act 1975 creates various offences for dealing in controlled drugs. These offences include: sale and supply, possession for sale or supply, importation, exportation, manufacture, production and cultivation. In the current Act, some of these offences are problematic because of the broad range of activities that they cover.
The offence of possession for supply and the presumption of supply is also controversial because it reverses the onus of proof. This means that a defendant who possesses a drug above a certain quantity is presumed to have possessed that drug for the purposes of supply. Many experts believe that this is inconsistent with the New Zealand Bill of Rights Act which affirms the right of those charged with an offence to be presumed innocent until proven guilty.

The Law Commission considers that drug dealing, particularly on a large commercial scale, is the most harmful of all drug-related activities. In Chapter 10, it suggests various options to deal with problems arising from dealing offences under the existing Act.  

Key questions to consider

Should the current distinction in the Act between the sale of Class C drugs and other forms of supply of Class C drugs be removed, so that supply for profit would not be a separate offence but a factor to consider during sentencing (together with other factors such as the scale of supply)?

Yes. Distinguishing sale from supply according to the class of drug in question is not logical. More importantly, when it comes to assessing how blameworthy an individual is (known in legal jargon as their ‘culpability’), other factors such as the quantity of drugs being supplied are more relevant than whether or not the drugs were sold for profit.

The Drug Foundation believes that the scale of the offending is a more accurate measure of the culpability of the offender rather than proof of sale. We agree with the Law Commission that supply for profit should not be a separate offence but one of many factors for a judge to consider during sentencing.

Do you agree that the scale of offending should be treated as a sentencing matter rather than be reflected in the offence?

Yes. This is the current approach taken in New Zealand. The Drug Foundation agrees with the Law Commission that this approach allows more flexibility than incorporating the scale of offending in the definition of the offence.

Should social dealing be treated differently from other forms of dealing? If so, how?

Yes. The Drug Foundation believes that those who supply very small amounts of drugs to their friends without trying to make a profit should be treated differently from drug dealers who are motivated by profit. We believe that the social supply of drugs should be dealt with more like the possession of drugs and deserves less harsh penalties. In particular, we do not believe that sending those who supply small amounts of drugs to their friends without seeking to make a profit should face prison sentences. This is consistent with our view that we should be focussing our efforts to curb the supply of illicit drugs by targeting large scale commercial drug dealers.

The Drug Foundation agrees with the Law Commission that social supply should be distinguished at a sentencing level due to difficulties in framing such an offence into a statutory definition.

The Drug Foundation also agrees with the Law Commission’s suggestion that no matter what the class of drug, those involved in social supply should not face prison sentences as long as the offence involved small quantities, the offender was also using the drugs, the supply was to friends or acquaintances and the offending was not motivated by profit. The Law Commission describes this as expanding the presumption against imprisonment for social supply to include all classes of drugs.

The Drug Foundation acknowledges that there may be some risks that the market will shift in response to any law change that differentiates social dealing from other forms of dealing. However, the requirement to meet the strict criteria described above should effectively prevent this from occurring. Furthermore, allowing judges the discretion to distinguish social supply at a sentencing level should ensure that any aggravating factors such as links with criminal organisations are taken into consideration when determining the nature of the offending.

Should there continue to be an offence of possession for supply? If so, should the onus be on the defendant (where he or she possesses an amount over the level at which drugs are presumed to be possessed for supply) to prove on the balance of probabilities that the drugs are not for supply?  

No. The Drug Foundation does not believe there should continue to be a special offence of possession for supply. Rather, we believe that this should be replaced with an aggravated possession offence.

The current offence of possession for supply includes a legal presumption that a defendant who possessed a drug above a certain quantity must have possessed that drug for the purposes of supply. The onus is on the defendant to prove otherwise. This means that if someone is caught with over a certain quantity of drugs, they are automatically assumed to have this for the purpose of supplying others.

This presumption is controversial. In a landmark legal case, a majority of the Supreme Court believed that this was at odds with our Bill of Rights Act which affirms the right of those charged with an offence to be presumed innocent until proven guilty.  

The Law Commission presents four different options in relation to this issue. Its preferred option is scrap the possession for supply offence and replace it with two possession offences categorised by quantity, with the offence relating to the higher quantity having a higher maximum penalty. The Drug Foundation supports this option. The Expert Advisory Committee on Drugs should advise government on the quantity of drugs that would attract the aggravated offence.