Chapter 11: Personal use

This whole chapter on Personal Use has been revised since the earlier toolkit dated March 2010.

Background

This chapter proposes that a new approach be taken to drug possession, drug use, and other offences related to personal use, and outlines what some of the options for that approach might be.

This section refers to “convention drugs” which mean controlled substances as outlined in the international conventions. This is an important point to make as the scope for reform must be in compliance with our obligations under the international conventions. This instantly removes options for reforms favouring legalisation of drugs in relation to personal use activities. While the conventions are party to a prohibition regime there is flexibility regarding the requirement for criminal sanctions in respect of the personal use and possession of drugs. This flexibility allows for a range of responses - including a non-prosecution policy to non-custodial sentences if prosecution remains.

Personal use

Background

The Drug Foundation believes that any future approach to possession for personal use should incorporate the following core principles: provide greater opportunities for drug education, assessment and treatment; ensure proportionality with drug harms; mitigate the harms and costs of prohibition; ensure the best use of limited resources; reduce drug-related harms to users, their families and communities; be equitable in terms of its enforcement.

The Drug Foundation recognizes that in moving towards drug law reform, New Zealand must remain in compliance with our obligations under the international conventions. However, we believe that even within a prohibitionist framework, there is flexibility to divert more people away from the criminal justice system and into education and treatment. We note that the Law Commission itself has identified that it may be open to parties to interpret the conventions as not requiring the establishment of criminal offences for possession and cultivation of convention drugs for personal use. We believe that this allows for a range of responses – ranging from a formal non-prosecution policy through to non-custodial sentences, if prosecution is to remain.

We elaborate on our proposed approach in our responses to the specific questions below.  

Should there continue to be a criminal offence for drug use or does it suffice to rely on the offence of possession for personal use?

The Drug Foundation does not believe that there should continue to be a separate criminal offence for drug use per say. Rather, we believe that any response towards an individual who uses drugs should be based on the possession, rather than the use, of drugs. Our position is based on the fact that there are currently very few instances where police take action against an individual for use instead of possession. In 2008, for example, 93% of cannabis possession and use offences, and 97% of non-cannabis possession and use offences, related to possession. Furthermore, our position also reflects the fact that the resources needed to prove consumption are generally impractical. We do believe that certain types of drug use – for instance, drug use in front of children – could be taken into account as an aggravating factor during sentencing for more serious drug-related offences.

What approach should be taken where possession is for the purpose of personal use? In particular, what alternatives (if any) to prosecution should be used?

The Drug Foundation agrees with the Law Commission that the current approach to the possession of drugs for personal use is not the most effective way to respond to this issue. Under current New Zealand law, the consequences of possession for personal use and related offences are dealt with through the criminal justice system. However, this approach is somewhat loosely upheld by law enforcement officials (particularly in relation to Class C drugs) who frequently resort to informal mechanisms such as police discretion, involving cautioning and confiscation rather than prosecution.

A policy is being tested in the Auckland region where minor cannabis offenders receive a formal caution for their offending to help reduce the number of minor cases clogging the court system. The official caution is recorded but no criminal conviction applies. The pilot scheme was extended after being deemed a success in the North Shore. This approach is not viewed by the police and councils as a soft approach as people are still being held to account for their actions. According to the Waitemata Police District Commander, Superintendent Bill Searle, “It is a common sense approach. We are looking for better ways to deal with minor offences which would not get a significant sentence anyway.”

Regardless of how well such cautionary and non-punitive approaches may be working, our chief concern is that such schemes are not currently supported by legislation. We strongly agree with the Law Commission that any new approach to possession for personal use must be provided for in legislation. This helps provide certainty and transparency for the police, the wider public and for people who use drugs.

Various other jurisdictions, notably all Australian States and Territories, have adopted more effective approaches to possession for personal use than we currently have in New Zealand. These models better emphasise the health and educational needs of drug users and are based on directing users into assessment, education and/or treatment rather than into the criminal justice system. While no single international model can be directly transplanted into the New Zealand context, the Drug Foundation believes that we can draw on successful aspects from these international models when formulating our own approach.

We welcome the wide range of options the Law Commission has considered as possible alternative approaches to personal use offences. Of these, we acknowledge that the Law Commission has identified confiscation and monetary penalty, a formal cautioning scheme for all drugs, or a combination of both these options as its preferred options. The Drug Foundation believes that there are merits in an approach which seeks to combine aspects from an infringement scheme with aspects from a formal cautioning/referral scheme, and we elaborate on our proposed approach below. This type of approach is known as ‘prohibition with civil penalties’ and is currently in use in various jurisdictions overseas including Western Australia.

A recent report into New Zealanders’ knowledge of and attitudes to illegal drugs found that the illegal status of drugs was not a deterrent for drug use but was a deterrent for seeking help. Respondents noted the need to reduce stigma against people with drug dependence and to promote supportive environments that make it easier to seek help. The Drug Foundation believes that a new approach incorporating cautioning and infringement schemes are a step in the right direction towards a more balanced approach to drug use and its harms.

RESOURCE

The Matters of Substance article ‘Reforming cannabis penalty regimes to reduce harm’ provides a list of reform options to reduce cannabis related harm.

(www.drugfoundation.org.nz/lets-talk-about-pot/cannabis-penatly-regimes)

The Matters of Substance article ‘Diversion: Australia’s alternative to drug law reform’ provides a look into Australia’s Illicit Drug Diversion Initiative (IDDI), which has enabled a vast expansion of diversionary opportunities for illicit drug users in Australia.

(www.drugfoundation.org.nz/moda/diversion-australias-alternative-to-drug-law-reform)

Our suggested approach to personal use

The Drug Foundation believes that any new scheme for personal use should apply for all drugs that are currently scheduled as controlled drugs. However, we believe that the response should differentiate between lower risk of harm drugs such as cannabis (that are generally also higher prevalence), versus higher risk of harm drugs such as methamphetamine (that are generally also lower prevalence). We support a mandatory infringement scheme for lower risk of harm drugs such as cannabis operating alongside a direct referral scheme for users of higher risk of harm drugs such as methamphetamine and opiates. This would remove police discretion to escalate offenders directly to prosecution.  

The primary rationale for such a split in response is to ensure that those who are in greatest need of assessment and treatment receive it, while avoiding overburdening the treatment sector with those users who are not dependent. Not all people caught with drugs are dependent drug users. In general, users of higher risk of harm drugs such as methamphetamine are more likely to be in need of assessment and treatment than users of lower risk of harm drugs such as cannabis and ecstasy. Recent research has shown that only 10% of those who ever use cannabis meet criteria for dependence at some point in their life. Similar data from Western Australia show that possibly 0.2% or less of those with a cannabis use disorder are likely to be apprehended by the police. Mandatory education of all adults apprehended with cannabis is therefore clearly not feasible or necessary. 

While we do not intend to provide the Law Commission with the specific mechanics of a new approach to personal use offences, we outline some of the key aspects of such a scheme below.

Under any new scheme, the personnel possession of drugs would remain illegal. However, those persons found in possession of small amounts of cannabis (and other drugs deemed to be ‘low risk’ such as ecstasy) would receive an infringement notice and self help resources. The infringement fine will be proportionate to the offence. All drugs will be confiscated. As an alternative to paying a fine, offenders could chose to attend an education session. This could take the form of a screening/intervention model. Those not paying fines and not attending an education session would not be prosecuted but would face an additional administrative fee and given an extension to pay. Those receiving repeated infringement notices within a stipulated period (for example, two years) are likely to have a dependence problem. As such, we propose that such persons would not have the option of paying a fine but would be required to complete a more comprehensive assessment and education session. Failure to comply would result in some form of sanction through a diversion scheme, for example.

Those persons found in possession of small amounts of higher risk of harm drugs such as methamphetamine would be required to attend a compulsory assessment by a treatment professional at the first instance. Once again, failure to comply with this assessment would result in a sanction that could take the form of diversion. We acknowledge that the details of this approach need to be carefully operationalised and would be willing to assist the Commission with this process. Furthermore, the success of any such approach is obviously contingent on adequate resourcing.

The Drug Foundation acknowledges that the level of compliance with paying an infringement or attending an education session is integral to the viability of any such approach to lower risk of harm drugs such as cannabis. Data from Western Australia demonstrate that between April 2004 and March 2007, a total of 9,328 infringements were issued to 6,790 cannabis infringement notices. Of these, about 75 per cent complied with their penalty of either paying a fine or attending a cannabis education session. A two-phased approach to the collection of fines was important to maximise compliance. There is also strong evidence to show that such a scheme is cost-effective, with an estimated net saving of $2.3 million over three years when compared with the alternative of adult offenders only being dealt with by Magistrates Courts.

We believe that the implementation of such a scheme should be preceded and accompanied by a high profile public education campaign on the harms of drugs and the laws that apply. The scheme should also be subject to ongoing monitoring and review.

Concerns that this type of approach may lead to an increase in drug use appear to be unfounded. Research following the introduction in 2004 of the CIN Scheme in Western Australia found reductions in the use of cannabis that were similar to those observed in other States. For example, the proportion of people in Western Australia using cannabis in the past 12 months decreased from 19% in 2002 to 12% in 2007.  However, the proportion of recent cannabis users who said that they had grown at least some of the cannabis which they had smoked over the past year increased from 11% pre phase to 25% post phase. This suggests a considerable increase in the proportion of users who were self supplying to some extent and thus reducing their reliance on the illicit cannabis market, a desirable outcome.

Since the introduction of the CIN scheme in Western Australia, a higher proportion of the Western Australia public believe that cannabis is harmful than did before the scheme came into place. The proportion agreeing that ‘people usually have a good time when they use cannabis’ fell from 57% in phase one to 39% in phase two. The belief that ‘using cannabis once a month was not dangerous’ fell from 40% to 28%. These data refute predictions that such schemes portray the message that cannabis use is not harmful. However, they reinforce the importance of a high profile and effective public education campaign to accompany any legislative change. Research evaluating public attitudes towards the CIN scheme also reveals considerable public support for the scheme, again illustrative of the importance of an effective public education campaign. 

If possession for personal use results in a prosecution in the courts, what approach should be taken?

We believe there are some merits (but also drawbacks) to all three options proposed by the Law Commission for personal use resulting in a prosecution in the courts. While extension of the Police adult diversion scheme to a wider range of drug offences, for example to possession of Class A and B Drugs, may be a step in the right direction, there is currently no statutory basis for this scheme. Furthermore this approach would not be useful if a well functioning infringement and cautionary scheme was in place.

With respect to the option for less severe penalties, we agree that the current presumption against imprisonment for Class C personal use offences be extended to all drug types.  However this in itself would not provide effective responses to dependent users who would be better served by receiving assessment and treatment and would derive no benefit from receiving a criminal record. Furthermore, we do not believe that the severity of penalties has a significant bearing on the reduction in demand for drug use.

We believe that court-based diversion into assessment and treatment does help address the underlying cause of the offending and helps to reduce re-offending. As such, we are strongly in favour of this option but recognise that current resources constraints need to be urgently addressed for the full benefits of diversion into assessment and treatment to be realised.

Again, we believe that New Zealand can draw on the experience from the Australian Illicit Drug Diversion Initiative. The Australian diversion initiatives have been associated with numerous benefits including large reductions in criminal justice costs.  Compared to a traditional criminal charge, cannabis cautioning produced a saving of 1.5 hours per officer at the point of arrest and 7 hours in cases where an offender would have otherwise had to go to court. Importantly, Australian diversion programmes have also reduced offending and the likelihood of imprisonment from reoffending. Another significant benefit has been reduced drug use, suggesting that fears diversion might lead to an increase in drug use are unfounded. Lastly, diversion programmes have increased the cost-effectiveness of responses. One programme offered savings equivalent to $2.98 for every $1 invested, attributed to reductions in the costs of police investigations, hospitalisations, criminal activity and prison costs.

How should any new approach taken to personal use offences apply to the offence of possession?

The Drug Foundation acknowledges that determining eligibility for a personal use offence is challenging. We note that the Law Commission has suggested two main approaches to this issue – the setting of a quantifiable amount or requiring police to make an assessment in each case. Based on the experience in various Australian states, we believe that these options are not mutually exclusive. As such, the Drug Foundation supports an approach where both options work in tandem. While quantifiable amounts should be set, we believe that police should retain a level of discretion (within strict parameters) to make an informed assessment as to whether drugs possessed are for personal use.

If use remains a criminal offence, should “aggravated” use be excluded from any new approach taken to personal use offences?

Yes. We support the Law Commission’s view that aggravated offences (e.g. use in front of a minor) encompass greater culpability than simple possession, as it moves beyond harm to an individual to harm towards others. We believe that in most cases, other more appropriate mechanisms are in place to deal with such offending – for example, CYF-related legislation. As such, we believe that aggravated use be excluded from any new approach to personal use offences. Further grounds for this exclusion are to avoid unnecessarily complicating the law.   

Should the possession of utensils for the purpose of using drugs remain a criminal offence?

No. The Drug Foundation believes that the possession of utensils for the purpose of using drugs should no longer remain a criminal offence. This reflects our view that possession of drugs (or utensils) for personal use is more appropriately dealt with outside the criminal justice system. Furthermore, the current reality is that police do not often charge a person with a utensils offence as many people found in possession of a utensil will have some drugs in their possession. In that sense the possession of utensils does not reflect any additional criminality on their part. We think these are sufficient grounds to scrap the possession of utensils as a criminal offence.

The Drug Foundation also supports the decriminalisation of possession of needles and syringes. It is our view that legislation should focus on reducing the harm, to IV drug users, those they associate with and the community at large, which results from needle sharing, in particular the transmission of HIV and Hepatitis C. While we welcomed the 2005 Amendment which reverses the onus of proof for people charged with possession of a needle or syringe, there is still ambiguity in how this is applied on the ground. In practice the concern by users is more likely to be one of perception. There is substantial international research supporting the assertion of the New Zealand Needle Exchange and other groups that fear of being picked up and arrested increases needle and syringe sharing.

Should cultivation of a prohibited plant for personal use be included within any new approach taken to personal use offences?

The Drug Foundation recognises that this is a challenging area. The rationale for incorporating cultivation within any new approach to personal use offences is to weaken the criminal black market. Evidence from Western Australia where cultivation offences for personal use are covered by the cannabis infringement scheme shows that this has shifted people away from the black market and has not resulted in a rapid expansion in cannabis cultivation and the cannabis market. However, we acknowledge that there would be significant challenges to operationalising such a system in New Zealand. As such, we believe that the appropriate responses to cultivation for personal use need to be further carefully considered.

Do you agree that the approach that is taken to personal use offences committed by adults should not be extended to personal use offences committed by youth?

We believe that an enhanced response to personal use offences committed by youth is necessary. Youth who use drugs are more vulnerable to drug-related harms than adults. They are also more likely to engage in risky behaviours when older and to develop drug-related problems. Furthermore, drug-dependent youth are less likely than adults to seek treatment. As such, we believe it is important that any intervention for young people apprehended with drugs aims to direct them into education and assessment.

While there is already significant scope within the youth justice system in New Zealand to identify and deal with drug treatment or other rehabilitative needs, we believe that inadequate numbers of youth are receiving the interventions they need. For example, in 2008, 42% of youth apprehensions by police for illegal drug offences resulted in a warning or caution only. The Drug Foundation believes that many of these youth could benefit from an intervention that couples a caution or warning with at least one mandatory educational session. This session would aim to increase their knowledge and understanding of the harms associated with drug use, and should be flexible enough to provide or refer those who need it for further assessment and counselling. Support and involvement with families during this process is also important. Failure to attend could result in the young person being referred back to the youth court.

The implementation of such a scheme within the youth justice system would ensure consistency and certainty when dealing with youth drug personal use offences, and would maximise the opportunities to provide education and assessment to group that are particularly vulnerable to the harms from the misuse of drugs.

RESOURCE

The Matters of Substance article ‘Drug law and the youth court’ where Principal Youth Court Judge Andrew Beacroft gives an interesting insight into the workings of the youth justice system.

(www.drugfoundation.org.nz/healthy-drug-law/international-drug-policy-symposium/presentations/drug-law-and-youth-court)