Prosecution Procedure Crown Prosecutions

Question 1

Offences automatically prosecuted

Answer 1

As per the Crown Prosecution Regulations 2013, the only drug offences that are automatically prosecuted by the Crown following plea are:

• s6(1)(b) or (2A) production or manufacture of, or conspiracy to produce or manufacture, methamphetamine
• s10 Aiding offences against corresponding law of another country corresponding to section 6, 9, 12A or 12AB.
• s12C Commission of offences outside New Zealand.

Question 2

Criteria for other drug offences: Class A

Answer 2

s6(1) or (2A) Dealing or conspiring to deal in a Class A controlled drug (except production or manufacture of, or conspiracy to produce or manufacture, methamphetamine) if –
(a) the quantity of drugs is more than 5 times the quantity of the presumption threshold, including in combination with any other charges being heard together in the proceeding; or

(b) there is evidence of large-scale dealing beyond the actual quantity seized; or

(c) there is substantial evidence derived from a surveillance device involving audio interception.

Question 3

Large-scale dealing

Answer 3

Large-scale dealing may be substantiated by:

(i) Admissions made by the defendant;

(ii) The amount and sophistication of equipment found in the defendant’s possession;

(iii) Volumes of precursor materials found in the defendant’s possession;

(iv) Evidence of chemical purchases;

(v) Intercepted communications;

(vi) Observation evidence, particularly over extended periods;

(vii) Significant cash holdings and/or movements;

(viii) Evidence, including records, of proposed and/or actual sales, including detailed and/or extensive supply lists;

(ix) Other evidence of sophisticated, organised or large-scale dealing – eg, travel movements, volume of drugs found in defendant’s possession;

(x) Expected evidence at trial of co-offenders (ie, taken after plea and sentence), informants or other Crown witnesses.

(xi) Evidence suggesting a continuing course of conduct.

Question 4

Criteria for other drug offences: Class B & Class C

Answer 4

s6(1) or (2A) Dealing or conspiring to deal in a Class B controlled drug if -

(a) the quantity of drugs is more than 10 times the quantity of the presumption threshold, including in combination with any other charges being heard together in the proceeding; or

(b) there is evidence of large-scale dealing beyond the actual quantity seized; or

(c) there is substantial evidence derived from a surveillance device involving audio interception.

See previous section for the definition of large-scale dealing.
s6(1) or (2A) Dealing or conspiring to deal in a Class C controlled drug where there is –

(a) evidence of large-scale commercial dealing; or

(b) substantial evidence derived from a surveillance device involving audio interception.

Question 5

Categories of cannabis cultivation

Answer 5

For sentencing purposes, cannabis cultivation is divided into three broad categories:

• Category 1: growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended.
• Category 2: small-scale cultivation of cannabis plants for a commercial purpose, ie, with the object of deriving profit.
• Category 3: large-scale commercial growing, usually with a considerable degree of sophistication and organisation55.

Sentencing judges commonly adapt those categories to the dealing context.

Alleged offending falling within category 3 above is a Crown prosecution. There must be admissible evidence that substantiates the real nature and scale of the dealing operation.

s9 Cultivation of (or conspiring to cultivate) a Class C controlled drug where there is –

(a) evidence of large-scale commercial cultivation; or

(b) substantial evidence derived from a surveillance device involving audio interception.

Question 6

Large-scale commercial Cultivation

Answer 6

Large-scale commercial cultivation may be substantiated by (see large scale dealing list on page 103) but would include the following:

(i) Volume of cannabis found in the defendant’s possession;

(ii) Evidence of an extensive and sophisticated ongoing operation involving regular crop rotation;

(iii) Evidence of extensive crop yields;