Drug Offences

Question 1

Drugs
Penalties for conspiring to deal controlled drugs
s6(2A) MODA75

Answer 1

s6(2A) MODA75
Class A - 14 yrs
Class B - 10 yrs
Class C - 7 yrs

Question 2

Drugs

Discuss - Usable quantity

Answer 2

In any drug offence the quantity of drug involved must be measurable and useable.

Police v Emerali
“…the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance”.

Question 3

Drugs

R v Brown (4 ways offering can occur)

Answer 3

R v Brown

(1) offers to supply a drug that he has on hand
(2) offers to supply a drug that will be procured at some future date
(3) offers to supply a drug that he mistakenly believes he can supply
(4) offers to supply a drug deceitfully, knowing he will not supply that drug

Question 4

Drugs
Equipment, material, and substances used in production or cultivation of controlled drugs
s12A MODA 75

Answer 4

s12A MODA75
(1) Every person commits an offence against this Act who supplies, produces, or manufactures—
(a) any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or
(b) any precursor substance—
knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.

(2) Every person commits an offence against this Act who has in his or her possession—
(a) any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or
(b) any precursor substance—
with the intention that the equipment, material, or substance is to be used in, or for, the commission of an offence against that provision.

(3) Every person who commits an offence against this section is liable on conviction,—
(a) in the case of an offence against subsection (1), to imprisonment for a term not exceeding 7 years:
(b) in the case of an offence against subsection (2), to imprisonment for a term not exceeding 5 years.

Question 5

Drugs

Define - Imports (s2 - Customs and Excise Act 1996)

Answer 5

s2 - Customs and Excise Act 1996
importation,—
(a) in relation to any goods, means the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand

Question 6

Drugs

Define - Exports (s53 Customs and Excise Act 1996)

Answer 6

Section 53 Customs and Excise Act 1996

For the purposes of this Act, the time of exportation is the time when the exporting craft leaves the last Customs place at which that craft calls immediately before proceeding to a point outside New Zealand. In all other respects the elements of exporting a controlled drug correspond to those of importing.

Question 7

Drugs

Discuss - Guilty knowledge

Answer 7

For a person to be guilty of an offence relating to controlled drugs they must have guilty knowledge; a person who innocently possesses something they genuinely believed was not a controlled drug has a defence.

R v Strawbridge [1970] NZLR 909
It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.

Question 8

Drugs
Define
- Controlled Drug
- Controlled Drug Analogue

Answer 8

• Controlled drug
  Section 2 Misuse of Drugs Act 1975
  means any substance, preparation, mixture, or article specified or described in Schedule 1, Schedule 2, or Schedule 3 to this Act ; and includes any controlled drug analogue
• Controlled Drug Analogue
  Section 2 Misuse of Drugs Act 1975
  Any substance that has a structure substantially similar to that of any controlled drug. There are exceptions.

Question 9

Drugs

Discuss - Produce / Manufacture (R v Rua)

Answer 9

The terms “producing” and “manufacturing” are essentially synonymous; both relate to the process of creating controlled drugs.

To “produce” means to bring something into being, or to bring something into existence from its raw materials or elements.

Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.

R v Rua [2008] NZCA 38
The words “produce” or “manufacture” in s 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.

Question 10

Drugs

When is the offence complete for Produce and Manufacturing

Answer 10

The offence is complete once the prohibited substance is created, whether or not it is in a useable form.

Question 11

Drugs
Discuss - Possession / Ideal Possession
(s2(2) MODA75)

Answer 11

Possession (2(2) MODA75
For the purpose of this Act, the things which a person has in his possession include anything subject to his control which is in the custody of another.

Possession can be actual or constructive.
Actual Possession
Arises where the thing in question is in a person’s actual custody. It is on or about their person, or immediately at hand.

Warner v Metropolitan Police Commissioner
Ideal Possession is:
- complete physical control
- knowledge of its existence, situation and qualities
He has received it from a person who intends to confer possession of it, and he has himself the intention to possess it exclusively of others.

Question 12

Drugs

Define - Supply (s2 MODA75)

Answer 12

s2 Misuse of Drugs Act 1975
Supply includes distribute, give, and sell

R v Maginnis
“Supply involves more than the mere transfer of physical control … it includes enabling the recipient to apply the thing … to purposes for which he desires …”

Question 13

Drugs

Discuss - Administer

Answer 13

Administering is distinguished from supplying in that it involves introducing a drug directly into another person’s system.

Question 14

Drugs
Discuss:
- Sell
- Offer to Sell (R v Brown, R v During)

Answer 14

Selling
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.

Offer
R v During
“[An offer is] an intimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by the statute”.

R v Brown
“… the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence”.

Question 15

Drugs

Discuss - Otherwise deals

Answer 15

The term “otherwise deals” is aimed at dealing in a drug by some means other than by distributing, giving or selling it, administering it or offering to supply or administer it.
e.g bartering, exchanging

Question 16

Drugs

Discuss - Presumption of sale (s6(5) MODA75)

Answer 16

s6(5) MODA75
For the purposes of paragraph (e) of subsection (1) of this section, if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug to that other person.

The effect of this provision is to require the defendant to prove on the balance of probabilities that there was no sale.

Question 17

Drugs
Discuss - Presumption for supply (s6(6) MODA75)
Give examples

Answer 17

s6(6) MODA75
For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A)).

Heroin 0.5 grams
Cocaine 0.5 grams
Lysergide (LSD) 2.5 milligrams or 25 flakes, tablets etc
Methamphetamine 5 grams
MDMA (Ecstasy) 5 grams or 100 flakes, tablets etc
Cannabis resin and extract (oil) 5 grams
Cannabis plant 28 grams or 100 or more cigarettes
Not specified controlled drug 56 grams.

Question 18

Drugs
Define Class A, B or C controlled drugs
Give examples

Answer 18

Class A controlled drug (s2 MODA75)
Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this Act.

poses a very high risk of harm to individuals and to society. Examples:
− Cocaine
− Heroin
− Lysergide (LSD)
− Methamphetamine
− Psilocybine (found in magic mushrooms)

Class B Controlled drug (s2 MODA75)
Class B controlled drug means the controlled drugs specified or described in Schedule 2 to this Act

Pose a high risk of harm and include: 
	− Amphetamine 
	− Cannabis preparations (such as cannabis oil and hashish) 
	− GHB (Fantasy) 
	− MDMA (Ecstasy) 
	− Morphine 
	− Opium 
	− Pseudoephedrine 

Class C controlled drug (s2 MODA75)
Class C controlled drug means the controlled drugs specified or described in Schedule 3 to this Act ; and includes any controlled drug analogue

pose a moderate risk of harm and include: 
	− Cannabis plant 
	− Cannabis seeds 
	− Benzylpiperazine (BZP) 
	− Controlled drug analogues