The Court of Appeal has significantly changed sentencing guidelines for those who have committed methamphetamine-related offences, but the court can only go so far within the current legislative framework.
While a range of changes to sentencing guidelines are expected to result in a meaningful change to the way low-level meth offences are handled, the courts can only go so far within the current legislative framework, thanks to the dated Misuse of Drugs Act.
For a while now, there have been calls for the Government to repeal and replace the country’s core drug law, which was over 40 years old.
But Justice Minister Andrew Little says he has no intention of wholesale drug law reform, and the National Party is heading in the other direction, saying it would ratchet up penalties in the legislation in order to override these new sentencing guidelines from the court.
Significant shift in meth-related sentencing
The Court of Appeal judgment, released on Monday, addresses three core areas to be considered by judges when handing down sentences for meth-related offending.
These included the weight that should be given to the role played by the offender when assessing culpability. This allows for more flexibility depending on whether they are lower down the so-called pyramid scheme, or a “kingpin” running a significant meth lab.
It also says judges should take into account an offender’s personal circumstances, including addiction and mental health issues, as well as the impacts of colonisation.
Addiction, shown to be causative of the offending, will now be considered a mitigating consideration, appeal judges Justice Stephen Kos and Justice Christine French said in their decision.
And the section of the judgment to make the biggest splash in the public arena is the part that says addiction may justify a sentence discount of up to 30 percent. Notably this is not an absolute limit, meaning a sentencing discount of more than 30 percent is possible.
The decision acknowledges those with addiction problems often suffer from mental health issues, and the two could be considered in combination.
Judges are also encouraged to exercise their ability to adjourn sentencing, allowing the offender to undertake a rehabilitative or therapeutic programme ahead of sentencing.
And lastly, minimum periods of imprisonment must no longer be imposed as a matter of routine or in a mechanistic way, the court said. A new sentencing band had been added for low-level offending, with the option of community sentences up to four years.
“The Greens have been clear since we first came into Parliament 20 years ago – criminalising those caught in the web of addiction is a cheap and easy political high that has only ever made the problem worse.”
New Zealand Bar Association spokesperson James Rapley QC said these changes were important because they reflected a greater awareness that methamphetamine addiction was a serious health concern that could not be addressed by traditional ways of punishment.
“The decision is about assessing the real culpability in each case, and it reflects the need to find more effective ways of dealing with serious drug offending …
“Those who are involved at the very top levels, where there is commerciality, involvement by organised crime or exploitation of others, will still be dealt with severely and receive lengthy terms of imprisonment.”
Together, these are significant changes to the existing sentencing regime, but the court accepted it did not go as far as some may have expected.
This is partly due to restrictions posed by the current legislation.
In 2003, the government reclassified meth as a Class A drug, imposing a maximum sentence of life imprisonment.
Courts are not permitted to apply a more lenient sentencing scale than that set by the legislature, meaning unless the Government significantly changed the Misuse of Drugs Act, the court was limited in its ability to change sentencing scales.
Evolution over revolution
These variables and restrictions are why those who champion a health-based approach to drug use and drug-related offending say the changes are a step in the right direction, but more as part of the incremental evolution rather than a revolution.
NZ Drug Foundation executive director Ross Bell said this judgment would make a difference in conjunction with other recent changes in those space.
These changes included amendments to the Misuse of Drugs Act, which allows police to apply discretion when it comes to personal use and possession of drugs; as well as increased spending on mental health and addiction services; and programmes like Northland’s Te Ara Oranga and the Alcohol and Other Drug Treatment Court.
Bell is one of a growing chorus of voices calling for a full repeal and replace of the 1975 Misuse of Drugs Act.
He hopes an overhaul would see a move away from using long, harsh sentences as a way of deterring people from serious drug offending – an approach he said was flawed.
A full review of this law has been recommended by both the Law Commission and the recent independent Mental Health and Addictions Inquiry.
The issue of New Zealand’s drug legislation, and how the country deals with drug-related offending, was also an issue raised in the first report from the group tasked with leading justice sector reform. And it’s expected the final report, which is now going through the Cabinet process, will include recommendations to significantly reform the country’s drug laws.
The Green Party is also onboard with a complete repeal and replacement of the Misuse of Drugs Act, which drug reform spokesperson Chlöe Swarbrick says is long overdue.
“The Greens have been clear since we first came into Parliament 20 years ago – criminalising those caught in the web of addiction is a cheap and easy political high that has only ever made the problem worse.”
In regards to the court judgment, she said Kiwis were deluding themselves if they thought they could punish their way out of the country’s meth problem and this was an example of the courts innovating within their mandate to deal with social problems.
And while she believed the Government was making “big strides” in the direction of treating drugs as a health issue, the law was now more than 40 years old “and demonstrably unfit for purpose”.
Winning the law and order votes
The difficulty lies in the politics.
The NZ Drug foundation’s Bell said New Zealand seemed unable to talk about reform without it being couched as a hard versus soft issue.
“This is the conundrum that political parties have. The evidence points them in a certain direction, but politics points them in a different direction.”
This was borne out on Tuesday, when Justice Minister Andrew Little said he welcomed the Court of Appeal judgment, saying it was important that courts dealt with the person in front of them, and recognised the impact of addiction on those at the bottom of the so-called meth pyramid.
“Methamphetamine is a particularly bad, nasty, frankly evil drug. Its impact on pretty much anyone who uses it is sudden, immediate and hugely detrimental.
However, he said the Government had no plans or intentions to go further in terms of a wider review of the Misuse of Drugs Act.
“Methamphetamine is a particularly bad, nasty, frankly evil drug. Its impact on pretty much anyone who uses it is sudden, immediate and hugely detrimental. It wrecks individuals, it wrecks families, and it wrecks their lives.
“Methamphetamine stands apart from a lot of other illicit drugs, so we need to have a very clear strategy to deal with that,” he said.
So while Little supported a shift towards a more health-based approach, there was a limit on how far the Government would go, especially coming into election year when the opposition was working hard to differentiate itself from what it has labelled a “soft on drugs” and “soft on crime” government.
On Tuesday, National Party justice spokesperson Mark Mitchell said the Court of Appeal judgment sent the wrong message, and sentencing discounts for addiction would have “perverse outcomes”.
If National was in power following next year’s election, it would ratchet up penalties in the legislation, in order to override the new Court of Appeal decision, he said.
“There are no victimless crimes,” he said, adding that rehabilitation programmes should be delivered in prisons.
