For decades it has been the policy of NZ courts to send people convicted of Class A drug supply to prison for very long stretches of time, mostly because it was thought to lead to decreased drug supply. A series of cases in the Court of Appeal could change that, bringing the war on drugs another step closer to its end, writes Asher Emanuel

Marie started using methamphetamine in 2017 when she was 44 years old. She became addicted and started to sell methamphetamine at a small scale to subsidise her own use and that of her partner, to whom she supplied methamphetamine to ward off his violence.

In late 2017 Marie’s* text messages were intercepted by Police as part of Operation Tulip, which targeted supply of methamphetamine in Nelson. She had offered to supply methamphetamine 14 times in one year, across two months. All those offers combined totalled just 3.75 grams, worth perhaps $3,750, though any profit she stood to make would have been much less. Police searched her home and found various utensils, a stun gun, and 0.1 grams of meth.

Marie was charged with various offences relating to the supply of methamphetamine. In addition to her drug dependence, a letter to the court from addiction services at her local hospital recorded that she had been a heavy drinker in her teenage years and was lately drinking spirits daily. Subject to physical and sexual abuse and neglect as a child, and a victim of serious domestic violence in adult life, Marie suffered from post-traumatic stress disorder. At the age of 46, Marie was convicted after a guilty plea and sentenced to nearly two years in prison.

But that is small time among those serving prison sentences for methamphetamine supply.

Lok Sing was already in prison when Marie was caught. A Hong Kong resident, he travelled to New Zealand in 2015 to receive a package containing a garden hose which in turn contained 60.9 kilograms of methamphetamine. Customs identified the hose/methamphetamine but sent it on as a “controlled delivery operation” to allow Lok Sing to receive the package and commit a criminal offence.

The intercepted 60.9 kilograms was at the time the second largest seizure of methamphetamine in New Zealand, with a retail value of about $60 million, though Lok Sing’s payment was just $10,000. Lok Sing pleaded guilty to importing methamphetamine. At the age of 20, he was sentenced to 16 years and nine months’ imprisonment, or about 84% of his natural life to date. The court ordered he not be paroled (or, more accurately in his case, deported) until he has served at least eight years. His 18-year-old colleague, who speaks very little English, was sentenced to 12-and-a-half years.

For decades it has been the policy of New Zealand courts to send people convicted of Class A drug supply to prison for very long stretches of time, based largely on the assumption that longer sentences will lead to decreased drug supply.

Marie’s appeal against her sentence, heard last month as part of a larger test case, may bring an end to such extreme prison sentences for methamphetamine supply. Her lawyers argued that she, as someone addicted to the drug she was selling, should never have been sent to prison. But heard alongside her appeal were cases involving much larger quantities of methamphetamine and offenders without substance abuse problems. If the appeals succeed, NZ’s war on drugs will be one step closer to its end.

Marie and Lok Sing were both sentenced according to a 2005 Court of Appeal decision which established strict weight-based guidelines for sentencing methamphetamine supply offences. Late last year the Court of Appeal – NZ’s highest court as far as sentence guidelines go – decided to review the 2005 decision and picked out six cases, Marie and Lok Sing’s among them, to hear before a full court of five judges, a number reserved for cases where a significant change in the law is possible.

Ordinarily sentencing is hugely discretionary – every case is different, it’s accepted that there is no one right answer, and much comes down to the views of a particular judge. But a number of senior court decisions, including the 2005 guidelines, have forced sentencing judges to impose uniformly severe sentences for methamphetamine supply.

In 2005 the court of appeal heard an appeal by Dwight Fatu who had been sentenced to 9 years imprisonment for manufacture and supply of methamphetamine, which had then recently been reclassified from a Class B to a Class A drug, supply of which can be punished by life imprisonment.

Methamphetamine use had peaked four years earlier at about five per cent of the population and was in decline but at the time the country was transfixed by the lurid crimes of Antonie Dixon and a series of other prominent cases where violent offenders had used methamphetamine. Headlines proclaimed plagues, scourges and epidemics.

The court decided methamphetamine offending should be punished mainly according to how much product was involved. Less than five grams would be met with two to four years imprisonment, with gradations through to cases involving 500 grams plus for which an offender would be sentenced to ten years to life imprisonment. Those numbers would set what’s called the “starting point” of a sentence, from which reductions can be made for early guilty pleas, previous good character et cetera. But, mathematically, high starting points make for high sentences.

The effect has been to tie the hands of judges in the lower courts and prevent them doing what they think is justice in each case.

“It’s not uncommon”, one lawyer told the appeal court, “to hear District Court judges say to an offender, ‘That’s the weight and there’s nothing I can do about it’.”

Now, 14 years since the guidelines were decided, 12% of prisoners, or around 1,200 people, are imprisoned for drug offending – most for supply, and among those imprisoned for supply, most for supply of methamphetamine. The Department of Corrections has identified increases in drug offences as one of the drivers of prison population growth and drug enforcement has increased in recent years with the number of methamphetamine cases before the courts growing by 78 per cent in the five years to 2017.

Despite dramatic drug busts and hefty sentences, importation continues apace and involving ever greater quantities – half a tonne was intercepted in Northland in 2016 – and methamphetamine is reportedly now easier to obtain than cannabis. Police have concluded that seizures appear to have had no effect on the availability of methamphetamine.

The policy of severe punishments for drug supply has failed and a tide seems to be turning. The prime minister has stated the government’s intent to treat drugs as a health issue and refused to sign President Trump’s document calling for global ‘action’ on the war on drugs. The recent report of the Mental Health and Addiction Inquiry firmly recommended the decriminalisation of possession and use of controlled substances.

Across the country new responses to drug use are being developed. The Alcohol and Other Drug Treatment Court in Auckland puts offenders through rehabilitation programmes ahead of sentencing and reward successful recovery with mitigated punishments. In Northland the Te Ara Oranga initiative involves Police referring people caught with drugs to local health services rather than charging them with criminal offences. Both began under the previous government.

But for those caught with supply quantities of drugs and processed by the conventional criminal justice system the punishments remain severe, and especially severe for methamphetamine. If the moves towards cannabis liberalisation, occurring in both major political parties, suggest NZ is cutting a new path on drugs, attitudes to methamphetamine, and punishment for supply, show that in some quarters a conventional war on drugs is still being fought.

The Criminal Bar Association and the Public Defence Service – between them representing many of the lawyers who regularly defend people charged with methamphetamine supply – told the court that the defendants facing methamphetamine supply charges are often “little more than subsistence street level addicts”. Many, they said, were routinely being imprisoned for two to five years.

Under the 2005 guidelines, a person’s role in a drug dealing enterprise takes a back seat to how much methamphetamine was involved. The prisoners appealing and a long list of intervening organisations argued for greater importance to be placed on a person’s role – that a courier is far less morally responsible than their boss.

But some of the lawyers called on the court to do more than tweak the dials, and took aim at long-standing judicial policies which, if changed, could have a much wider impact on the criminal justice system.

While especially prominent in drug supply sentencing, the logic that longer sentences will better discourage offending affects sentencing for all kinds of criminal offending. But many of the lawyers argued that this assumption is wrong.

The theory of deterrence, as it’s called, assumes that humans make calculated, rational decisions and social control can be achieved by calibrating punishments to reduce unwanted behaviour. The more unwanted behaviour is, the worse the punishment should be. The evidence, though, does not match the theory.

“An overwhelming body of material says some of our assumptions about deterrence are not empirically sound”, Lok Sing’s lawyer argued. People make impulsive decisions and can be overly optimistic. People lack detailed knowledge of punishments. People are, in fact, not actually all that rational. And some people’s rationality is impaired by disability, illness or substance abuse.

The government’s own expert witness, criminologist Simon McKenzie, told the court that lengthening sentences of imprisonment for a certain crime is not likely to significantly deter that crime. Certainty of punishment – i.e. the likelihood of being caught and punished – is far more important than severity of punishment in deterring offending, McKenzie explained.

While deterrence theory might be well suited to determining punishments for, say, companies, which are constitutively ‘rational economic actors’, there’s little reason to expect it to work the same way for individual human beings, flawed as we all are, let alone people who are addicted to drugs.

In Marie’s circumstances, her lawyer argued, the prospect of a long sentence was not going to, and did not in fact, deter her.

“Her life was starting to unravel, she lost her house, her children were removed, her life became quite chaotic. All of that points to an individual who is not making rational choices.”

Workings of the human mind aside, it may be that the raw economics of the illicit drug industry mean that no amount of punishment will stem supply because those who are in practice caught are what the lawyers characterised as “disposable people”.

“There is zero deterrent from longer sentences”, the lawyer for the Criminal Bar Association argued, “because of the profitability of this commodity and expendability of those typically bringing the drug in.”

Cornered somewhat by their own expert’s evidence about deterrence, the government’s lawyers argument took a postmodern turn. It didn’t matter if long sentences couldn’t be justified by deterrence, they argued. There was still “symbolic value” in sentencing.

“The law has a communicative function and methamphetamine offending calls for sentences that reflect society’s condemnation.”

But sending a message is slim justification when long sentences don’t work and quite possibly increase drug harm.

The courts have established a rule that personal circumstances, including addiction, have little relevance to drug supply sentences because of the importance of deterrence. Combined with the lengthy sentences prescribed by the 2005 guidelines, this rule is leading to the imprisonment of subsistence level dealers who are themselves dependent on methamphetamine and, perversely, interfering with attempts at rehabilitation.

Renee, whose sentence was also under appeal, was completing a residential treatment programme and had been clean for 16 months when she was finally sentenced to over four years imprisonment.*

Her written evidence to the court explained that after being imprisoned she had lost her support network and was no longer able to access treatment for her post-traumatic stress disorder, which she considered a root cause of her substance abuse. And the rehabilitation programmes in her prison had long waiting lists.

“When she went to jail”, her lawyer told the court, “all of the gains she had made were effectively halted. The reality is that the prison doesn’t have an endless fund of money for these rehab programmes.”

“Neither do the DHBs”, a judge replied.

Which is true. About 50,000 New Zealanders are able to access treatment each year, supported by government funding of around $150 million. But another 50,000 people want help and are unable to get it.

In the 2005 hearing of Fatu’s case, the government’s lawyers told the court that methamphetamine “induces aggressive and irrational behaviour” and was “regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs.”

Now, some of the intervening organisation raised doubts whether that was quite accurate.

“Meth is clearly harmful,” the lawyer for the Criminal Bar Association said to the court. “But the seriousness has been overstated.”

“The empirical evidence for any relationship between meth use and violence at all is extremely shaky. The idea that meth users become immediately addicted and tear out and engage in extreme violence is wrong.”

Likewise the Law Society suggested that a few instances of extreme crimes involving offenders who had used methamphetamine may have influenced the guidelines.

“I find it odd to hear this submission”, a judge said to the Society’s lawyers.

“One can say that not everyone who uses methamphetamine is addicted, not everyone is psychotic. But one can’t say the social harm is not great – it is.”

Police had provided evidence to the court emphasising the cost of methamphetamine in human and financial terms, said to be a ‘social cost’ of $1,239 per gram.

No doubt the cost of substance abuse, including methamphetamine abuse, is enormous. But that alone doesn’t tell us much about the right way to deal with the problem. In fact, the seriousness of the harm might point to an entirely different approach.

“Look, meth is bad,” Ross Bell, executive director of the NZ Drug Foundation, told the Spinoff.

“But you look for scary cases like Antonie Dixon and it becomes a meth story. His crazy eyes, the gore, the samurai sword. And then we learned that he ended up killing himself in a very bad way in prison, and we discover after his death the that fact society really let him down.”

(Dixon committed suicide in prison in 2009. He had a childhood replete with all forms of abuse and, while the jury rejected his insanity defence at trial, it is plain he was seriously damaged.)

“There’s always more to it”, Bell said. “The substance is a nice headline, but all the complicated shit that’s under there, we don’t address.”

“The stigma that we’ve created, especially around meth, prevents those other messages that we want to send around kindness and compassion and treatment and that help is available.”

In lone defence of the 2005 guidelines stood the government’s lawyers who argued that, if sentences were too long, it was not down to the inflexibility of the guidelines, but the judges who apply them. Though they did concede the court might give new guidance on sentencing people with addictions.

The government’s lawyers were unable to comment specifically on the case but told the Spinoff that submissions made by the government for guideline cases like the present would generally involve “greater than usual discussion amongst senior staff and often consultation with interested departmental colleagues.”

It’s difficult, though, to reconcile the government’s goal of substantially reducing the prison population with its lawyers’ support for the 2005 guidelines and the long sentences they require.

Perhaps the position reflects the government’s attempt to at once show compassion to people with addictions while still punishing suppliers. Earlier this year the Prime Minister promised the government would recognise that “for many users, treatment programmes are the best way forward to reduce the pain and cost that too many suffer as a result of drug abuse”, but “at the same time combat suppliers and dealers.”

But cases like Marie’s raise the question whether this position is practically possible given users and suppliers are often enough the same people.

While proclaiming a health approach to drugs, the government promoted increases in Police numbers to “combat the methamphetamine scourge”, and paired its announcement of medicinal cannabis reform with promises to “crack down on synthetic drug dealers”.

According to Bell, the government’s recent decision to increase the classification of certain synthetic cannabinoids is the continuation of a substance-by-substance approach to drug policy which obscures the problems common to much substance abuse.

“Synthetics are a really good example of that bad behaviour that governments have – the focus on the substance. Yes, the chemical is fucking terrible and highly potent. But the vast majority of users are homeless or right on the margins.”

“We’ve made two of the substances that have been causing most of the deaths a Class A drug, but what else are we doing?” Bell asked.

“Are we are we going to build this new system that actually starts dealing with with drugs as a health issue?”

If severe punishments aren’t curtailing methamphetamine supply, what is to be done? Decriminalise, said the Drug Foundation, and focus on managing and reducing demand, said the Criminal Bar Association.

“The world is shifting, you know, people are sick of doing the same thing and not getting change. But it’s not this nice straight line trajectory,” Bell said.

“We have to be quite pragmatic and accept that for every Te Ara Oranga we get around the country, the cops are going to get more money and dogs, and Customs are going to get more machines that go bing at the border. Health will always be playing catch-up.”

If, when the court’s decision comes out later this year, the prisoners and those who argued alongside them get their way, an era of severe punishments may be at an end. The next steps, though – decriminalisation and greater funding for treatment – aren’t something the court can easily bring about.

Early in the two days of argument, one of the judges asked the lawyers to explain how the court could make some of the significant changes the lawyers were seeking. “We’re judges, not legislators,” he reminded them.

But, while much drug policy is the responsibility of the government and parliament, it was judges who made many of the rules leading to long sentences, and it’s judges who can unmake them. And every extra year in a sentence commits government resources to punishment which might otherwise go to treatment.

“Have judges contributed to the problem?” the lawyer for the Human Rights Commission asked the appeal court, innocently.

“If you feel you have, you don’t have to wait for others to fix it for you.”

*Names have been changed.