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CIB Modules SF > Drug Offences > Flashcards

Drug Offences Flashcards

1
Q

Import/Export

- Liablity

A

S6(1)(a) MODA75

  • Import into or export from New Zealand
  • any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3 to this Act
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2
Q

Produce/Manufacture

- Liabiltiy

A

S6(1)(b) MODA75

  • Produce or manufacture
  • any controlled drug
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3
Q

Supply/Administer Class A or B

- Liability

A

S6(1)(c) MODA75

  • Supply or administer, or offer to supply or administer, or otherwise deal in
  • any Class A controlled drug or Class B controlled drug
  • to any other person
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4
Q

Supply/Administer Class C

- Liability

A

S6(1)(d) MODA75

  • Supply or administer, or offer to supply or administer
  • any Class C controlled drug
  • to a person under 18 years of age
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5
Q

Sell/Offer to Sell Class C

- Liability

A

S6(1)(e) MODA75

  • Sell, or offer to sell
  • any Class C controlled drug
  • to a person of or over 18 years of age
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6
Q

Possession of controlled drug

- Liability

A

S6(1)(f) MODA75

  • Have any controlled drug in his possession
  • for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.
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7
Q

Class A Drug offending

- Sec 6 penalty

A

Life Imprisonment

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8
Q

Class B Drug offending

- Sec 6 penalty

A

14 years imprisonment

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9
Q

Class C Drug offending

- Sec 6 penalty

A

8 years imprisonment

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10
Q

Conspire with any other person to commit Drug Dealing offences - penalties

A

Class A - 14 years
Class B - 10 years
“Any other case (Class C) - 7 years

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11
Q

Import - definition

A

Customs and Excise Act 1996
s2 Interpretation

(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 …

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12
Q

Saxton v Police

A

To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.

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13
Q

R v Hancox (full version)

A

“… the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand’s territorial limits. Importing into New Zealand for the purposes of s 6(1)(a) is a process. The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination … [ie] when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee”.

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14
Q

Importing proof

A

The Crown must prove not only that the defendant’s conduct in some way contributed to the actual importation of the drug, it must also prove the defendant’s guilty knowledge.

This will involve proof that the defendant:

  • knew about the importation, and
  • knew the imported substance was a controlled drug, and
  • intended to cause the importation
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15
Q

Wilful blindness

A

In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.

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16
Q

Time of Exportation - definition

A

Sec 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.

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17
Q

Any Controlled drug

A

Sec 2, Misuse of Drugs Act 1975

Controlled drug 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

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18
Q

Controlled drug analogue

A

Sec 2, Misuse of Drugs Act 1975

Controlled drug analogue means any substance, such as the substances specified or described in Part 7 of Schedule 3 to this Act, that has a structure substantially similar to that of any controlled drug; but does not include—

(a) Any substance specified or described in Schedule 1 or Schedule 2 or Parts 1 to 6 of Schedule 3 to this Act ; or
(b) Any pharmacy-only medicine or prescription medicine or restricted medicine within the meaning of the Medicines Act 1981; or
(c) an approved product within the meaning of the Psychoactive Substances Act 2013

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19
Q

Class A controlled drugs - def

A

Sec 2 Misuse of Drugs Act 1975

Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this Act

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20
Q

Class A controlled drugs - examples

A

Class A controlled drugs are classified as such as their misuse poses a very high risk of harm to individuals and to society.

Some of the more well-known Class A controlled drugs include:

− Cocaine
− Heroin
− Lysergide (LSD)
− Methamphetamine
− Psilocybine (found in magic mushrooms)
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21
Q

Class B controlled drugs - def

A

Sec 2, Misuse of Drugs Act 1975

Class B controlled drug means the controlled drugs specified or described in Schedule 2 to this Act

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22
Q

Class B controlled drugs - examples

A 
Class B controlled drugs are those that pose a high risk of harm and include:
− Amphetamine
− Cannabis preparations (such as cannabis oil and hashish)
− GHB (Fantasy)
− MDMA (Ecstasy)
− Morphine
− Opium
− Pseudoephedrine
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23
Q

Class C controlled drugs - def

A

Sec 2 Misuse of Drugs Act 1975

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

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24
Q

Class C controlled drugs - examples

A 
Class C controlled drugs pose a moderate risk of harm and include:
− Cannabis plant
− Cannabis seeds
− Benzylpiperazine (BZP)
− Controlled drug analogues
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25
Q

R v Strawbridge

A

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.

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26
Q

Mistake as to nature of controlled drug

A

While guilty knowledge is an essential element, section 29 provides that it is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.

For example, it would not be a defence to a charge of supplying heroin if the defendant believed the drug he had supplied was in fact cocaine.

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27
Q

Police v Emerali

A

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

28
Q

R v Rua

A

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.

29
Q

Producing

A

To “produce” means to bring something into being, or to bring something into existence from its raw materials or elements.
The term is further defined in legislation as including “compound”.

Sec 2 Misuse of Drugs Act 1975
Produce includes compound; and production has a corresponding meaning

30
Q

Manufacturing

A

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

Common examples include manufacturing methamphetamine from pseudoephedrine, or manufacturing heroin from morphine.

31
Q

When is the offence complete?

producing/manufacturing

A

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

32
Q

Cannabis preparations

A

Section 29B deals specifically with producing cannabis preparations.
It provides that a cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material – for example, producing cannabis oil or baking a cannabis cake.

33
Q

Supply - def

A

Sec 2 Misuse of Drugs Act 1975

Supply includes distribute, give, and sell

34
Q

R v Maginnis

A

“[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 …”

35
Q

Distributing

A

The term “distribution” relates to the supply of drugs to multiple people.

36
Q

Selling

A

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

Although the consideration will commonly be money, anything of value will suffice - for example exchanging a large quantity of cannabis for some real estate.

37
Q

Administering

A

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

38
Q

Black’s Law Dictionary

Administering

A

In the context of drug dealing, the appropriate meaning of “administer” is “to direct and cause a … drug to be taken into the system” of another person.

39
Q

Offering to supply or administer

proof

A

The prosecution must prove two elements:

  • the communicating of an offer to supply or administer a controlled drug (the actus reus)
  • an intention that the other person believes the offer to be genuine (the mens rea)
40
Q

R v During

A

“[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”.

41
Q

R v Brown

intimation

A

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

42
Q

R v Brown

Offer to Supply

A

The defendant is guilty in the following instances:

(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

43
Q

R v Forrest and Forrest

A

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”.

44
Q

Sells

- presumption in absence of evidence

A

For the purposes of this offence, section 6(5) creates the presumption that in the absence of evidence to the contrary a drug supplied to a person over 18 years of age has been sold to that person.

Sec 6, Misuse of Drugs Act 1975
(5) 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.

45
Q

Possession

- actual

A

Actual possession arises where the thing in question is in a person’s physical custody; it is on or about their person, or immediately at hand.

46
Q

Warner v Metropolitan Police Commissioner

- ideal possession

A

The term “possession” must be given a sensible and reasonable meaning in its context. Ideally, a possessor of a thing has:

  • complete physical control over it
  • knowledge of its existence, its situation and its qualities.
47
Q

Knowledge of existence

- components include

A
  • the defendant must be aware that they possess the substance
  • the defendant identifies the substance as a controlled drug, even if there is no substance to be analysed to prove their assertion
  • physical custody presumes knowledge, unless otherwise proven.
48
Q

Sullivan v Earl of Caithness

- constructive possession

A

“[Possession includes} not merely those who have physical custody of firearms … but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location].”

49
Q

Constructive possession of drugs - def

A

Sect 2, Misuse of Drugs Act 1975

(2) For the purposes of this Act, the things which a person has in his possession include any thing subject to his control which is in the custody of another.

50
Q

Attempted possession

A

It is an offence to attempt to gain possession of a drug, a charge which covers someone obtaining something innocuous in the mistaken belief that it is a drug.

51
Q

Possession in drugs cases

- proof

A
  • knowledge that the drug exists
  • knowledge that it is a controlled drug
  • some degree of control over it
  • an intention to possess it
52
Q

R v Mohan

A

“[Intent involves] a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence…”

53
Q

R v Waaka

A

A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act.”

54
Q

Secondary Intent

A

A person may also have intended a secondary outcome, albeit a collateral one to his primary aim, if that outcome was foreseen as certain to occur.

So intention can include bringing about secondary consequences if the offender believes those consequences will happen. This is quite distinct from “recklessness” which involves foresight that a consequence is likely to happen.

55
Q

Proving Intent

- circumstantial evidence

A

the offender’s actions and words before, during and after the event
the surrounding circumstances
the nature of the act itself

56
Q

Drug Offences - Statutory presumption

A

Sec 6, Misuse of Drugs Act 1975
Dealing with controlled drugs

(6) 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)).

57
Q

Schedule 5 Misuse of Drugs Act 1975

- presumptive amount examples

A
  • Heroin 0.5 grams
  • Cocaine 0.5 grams
  • 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
58
Q

Conspiring to deal with controlled drugs

- Liability

A

Section 6 Misuse of Drugs Act 1975

(2A) Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction to imprisonment for a term—

(a) Not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) Not exceeding 7 years in any other case.

59
Q

Section 12A Misuse of Drugs Act 1975

- Equipment, material, and substances used in production or cultivation of controlled drugs

A

7 years
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.

5 years
(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.

60
Q 
Section 12A(1) 
- must prove
A
  • that the defendant has supplied, produced or manufactured equipment, material or precursors
  • that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
  • that the defendant knows those items are to be used for such an offence by another person
61
Q

Precursor Substance - def

A

Sec 2, Misuse of Drugs Act 1975

Precursor substance means any substance specified or described in Part 1 or Part 2 [[or Part 3]] of Schedule 4

Examples of some of the precursors listed in Schedule 4 are:

  • Acetic anhydride (precursor to heroin)
  • Lysergic acid (precursor to LSD)
  • Ephedrine / pseudoephedrine (precursors to methamphetamine)

Note: ephedrine and pseudoephedrine are scheduled both as Class B controlled drugs in Schedule 2, and as precursors in Schedule 4.

62
Q 
Section 12A(2)
- must prove
A
  • that the defendant has equipment, material or precursors in his possession
  • that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
  • that the defendant has the intention that those items are to be used for such an offence, either by himself or another person
63
Q

Possession offences include

A

− possession
− joint possession
− attempted possession

64
Q

Conspiring

- crucial ingredient

A

The crucial ingredient of conspiring to deal is an intention that is agreed on by two or more people.

A conspiracy to import drugs into New Zealand comes within New Zealand’s jurisdiction when you can prove the defendant has done something to complete the conspiracy in New Zealand.

65
Q

Proving Useable Quantity

A

Necessary that the amount of controlled drug is useable, however under section 29A it is not necessary for the prosecution to prove the fact unless the defendant puts the matter in issue

CIB Modules SF (15 decks)

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