Abstract
Methamphetamine was reclassified as a Class A drug in New Zealand in 2003. This meant harsher sentences for people convicted of its manufacture, importation or supply. Despite this, the number of convictions for methamphetamine-related offending continued to increase. In 2019, the New Zealand Court of Appeal agreed to review the sentencing of people convicted of methamphetamine offences on the grounds that some sentences were disproportionately severe. This resulted in a guideline judgment which lowered penalties for offences involving small amounts of methamphetamine (up to 5 grams). Community-based sentences replaced imprisonment as the lower bound of the starting point for sentence calculation. The Court of Appeal highlighted that the presence of addiction, mental health problems or social disadvantage should be taken into account as potential mitigating factors in sentencing. The Court accepted that these factors diminished moral culpability and reduced the deterrent impact of prison sentences. In this article we review the law and policy background to the New Zealand Court of Appeal proceedings, and discuss the reasoning behind the Court’s judgment.
Revising the sentencing framework for methamphetamine offences in New Zealand
In 2003, methamphetamine (though not other amphetamines) was reclassified as a ‘Class A’ drug in New Zealand under the Misuse of Drugs Act 1975. This was in response to public concern about its harms following a rise in use of the drug. Listing the drug as ‘Class A’ meant longer sentences for those convicted of the manufacture, importation or supply of methamphetamine: the maximum sentence for the most serious offending was now life imprisonment. However, the reclassification also created a problem for judges, who were faced with delivering sentences across a wide spectrum of offending without much guidance on how to ensure fairness and proportionality (Zhang v R [2019] NZCA507, at [15]).
In 2005, a New Zealand Court of Appeal guideline decision in R v Fatu [2005] NZCA 278 brought in four sentencing bands for methamphetamine offending according to the quantity of the drug involved. However, penalties remained high, with sentences of up to 4.5 years in prison for offences involving less than 5 grams of the drug. In 2018, this prompted a group of appellants to apply to the New Zealand Court of Appeal (‘the Court’). In their submissions, the appellants argued current sentencing practice was ‘unprincipled and unjust’ and that sentencing did not adequately account for individual factors leading to the offending (Zhang v R at [25]).
In response, the Court agreed to hear six illustrative cases with a view to making a new guideline judgment for offending involving the manufacture, supply or importation of methamphetamine. The Court acknowledged the appellants’ concerns, and it laid out the issues to be considered in the selected appeals as follows (Zhang at [2]):
The weight that should be given to the role played by the offender when assessing culpability. The relevance of an offender’s personal circumstances, particularly addiction issues. The approach to be taken to imposing minimum periods of imprisonment for methamphetamine offending.
The Court also sought expert advice on ‘the link between methamphetamine offending and addiction’ and the question of whether prison sentences had a deterrent effect on offending (Zhang v R at [3]).
In this article, we discuss the New Zealand Court of Appeal’s arguments put forward in their guideline judgment in Zhang v R and we place this judgment in the context of recent drug policy in New Zealand.
Methamphetamine in New Zealand
Amphetamine use has been endemic in parts of Asia since the Second World War (McKetin et al., 2008) but a problem in New Zealand has only existed since the 1990s. Recently, imported crystalline methamphetamine from Southeast Asia and Mexico has taken over from local manufacture. Purity and availability have increased and prices have lowered throughout the Asia-Pacific region (United Nations Office on Drugs and Crime, 2017). In New Zealand, the price of methamphetamine has fallen by over 50% in the last decade, and most people who use the drug regularly find it very easy to obtain (Wilkins et al., 2017).
While only about 1% of New Zealand adults report having used the drug in the past 12 months (New Zealand Ministry of Health, 2016), harms continue to go up, probably reflecting higher quantities being used among a subgroup of frequent users. Methamphetamine-related mortality is also rising (Wang et al., 2019). Use of the drug is common among people who are arrested (Wilkins et al., 2015) while 13% of New Zealand prisoners have a current dependence on stimulants (Indig et al., 2016), mainly methamphetamine. This situation has placed pressure on all parts of the criminal justice system in New Zealand including police, the courts and correctional facilities.
Methamphetamine harms
Methamphetamine use often occurs on a background of adverse childhood experiences, and within a context of current social disadvantage. Its harms include dependence on the drug, cardiovascular disease, poor oral health, injuries, violence, and mental health problems such as depression and psychosis (Farrell et al., 2019; McKetin et al., 2019).
One way to compare the harms of different drugs is multicriteria decision analysis (MCDA) using a panel of experts. In this approach, harms are evaluated across a range of domains and drugs are given a weighted score on each domain. A recent MCDA analysis in Australia placed crystalline methamphetamine third in its prevalence-weighted harm to users and others, behind only alcohol and cigarettes (Bonomo et al., 2019). No such analysis has been done in New Zealand. However, such an approach would likely produce a similar profile to that of Australia, since the prevalence and associated harms of tobacco, alcohol and methamphetamine use are similar in both countries.
As methamphetamine is relatively cheap and easy to manufacture, profits for those at the top of the supply chain offset the risk of criminal sanctions (Vearrier et al., 2012). Profit margins can be difficult to estimate, but they are often low for people at the bottom of the supply chain such as retail dealers (Gong et al., 2012). For many street dealers of illicit drugs, drug sales are the main source of income (DeBeck et al., 2007). To sustain this income, they must encourage other people to use the drug, so increasing the problem. The criminalization of drug possession and low-level dealing potentially increases the harms associated with methamphetamine use. First, when penalties for drug possession and low-level supply are similar, this does not discourage dealing activity. Second, sending people to prison after relatively minor offences helps them set up and maintain networks of criminal associates. Third, the nature of illegal drug markets means those who participate either as sellers or buyers are at increased risk of perpetrating violence or being a victim (Sommers and Baskin, 2006).
Drug policy and law in New Zealand
In 2007, the New Zealand Government asked the New Zealand Law Commission to review existing drug laws, particularly the Misuse of Drugs Act 1975 (‘The Act’) (New Zealand Law Commission, 2011). The Law Commission concluded the Act was outdated, overly focused on drug control rather than health issues and out of step with Government policy.
It therefore recommended the law be updated to align it better with national drug policy. To date the Act remains in place, but it has been subject to several amendments. Most recently, a 2019 amendment took a step towards decriminalization of the possession and use of controlled drugs, by giving police discretion about whether to prosecute these offences.
In November 2018, a Government Inquiry into Mental Health and Addiction was completed in New Zealand (New Zealand Government, 2019). The report from the Inquiry recommended current drug legislation should be replaced with ‘a comprehensive harm-minimisation approach to alcohol and other drug use […] to avoid criminalising people with drug abuse problems’. Similarly, a recent report by New Zealand’s Chief Science Advisor pointed to the harms of prison for people convicted of drug offences, including bringing people in contact with the drug supply trade (Office of the Prime Minister’s Chief Science Advisor, 2018). These comments are particularly salient for Māori, who make up more than 50% of those in prison in New Zealand and over 60% of those in women’s prisons despite being just 15% of the population. Racial inequality, particularly as it affects Māori, is a major factor in calls for ongoing modernization of drug policy and law in New Zealand.
Sentencing for drug supply offences
Purposes and principles of sentencing
In New Zealand law the goals of sentencing are formally stated in the Sentencing Act 2002 (s. 7), and they are accountability, promotion of responsibility, providing for the interests of the victim, reparation, denunciation, deterrence, community protection, and offender rehabilitation and reintegration. Among these purposes, the Court of Appeal in Zhang v R identified the question of whether deterrence was effective (see [3]) as an important issue, though as discussed later, the Court also provided a detail discussion of other relevant goals as they relate to serious drug offending.
The New Zealand Sentencing Act 2002 (s. 8) also lists principles which judges must take into account in sentencing. These are the gravity of the offending including the offender’s culpability, the seriousness of the offence, the maximum prescribed penalty for the offence, the need for consistency with other past judgments, the effect of the offending on the victim, the restrictiveness of the proposed sentence, the personal circumstances of the person convicted of the offence and the degree to which restorative justice processes have occurred.
In later sections we focus on the principles highlighted in Zhang v R, particularly culpability, consistency, restrictiveness and personal circumstances.
Incapacitation
Even if prison sentences are effective in reducing crime, it is difficult to establish whether this is because they deter offenders or simply render them physically incapacitated (Chalfin and McCrary, 2017). Incapacitation involves a restriction in liberties, for example imprisonment, designed to stop a person who has offended from engaging in similar behaviours. The structure of illegal drug markets suggests incapacitation has a relatively low impact on street dealing activity. Low-level dealing has low barriers to entry, as consumers in the market are familiar with local supply lines, product quality and pricing. Dealing is an attractive source of income for people who have an addiction or lack other economic opportunities. Low-level dealers who are imprisoned are quickly replaced on the streets (Strang et al., 2012; Woods, 2016). Furthermore, people who are imprisoned on supply offences may continue to sell drugs in prison and in some cases they may even continue to oversee community trading (Wood et al., 2010).
Deterrence
The principle of deterrence is predicated on the assumption that humans act as agents who exercise rational control and respond to behavioural incentives (Von Hirsch et al., 1999). Most research has pointed towards imprisonment having a weak but variable general deterrent effect (Chalfin and McCrary, 2017; Nagin, 2013), but deterrence may be even less effective for people whose offending is related to drug use (Green and Winik, 2010).
Well-considered sentencing should be tailored to the specific offence profile and individual needs of people who have offended, with the goal of preventing a person from engaging in further similar offences (specific deterrence). However, as already mentioned, prison gives people convicted of drug offences the chance to expand their networks of criminal associates. It also helps them develop their customer base for future supply operations after release (or in some cases, while in still in prison). These factors suggest any specific deterrent effect of prison sentences is likely to be minimal for people convicted of drug offences, and there is some empirical evidence to support this (Mitchell, 2016).
Quantity versus role as the best proxy for offence seriousness
The seriousness of a drug supply offence is mainly a function of the harmfulness of the drug, the quantity involved and the role of the accused person in the offence. As shown in Table 1, quantity thresholds are also used in the United Kingdom, which provided a template for the guidelines in Zhang v R (see [113]–[117]). These rule-based thresholds help speed up decision making processes and help achieve consistency and proportionality in sentencing.
Starting points for sentence calculation in methamphetamine possession and supply offences in New Zealand: Comparison with United Kingdom.
aBased on Zhang v R at [125]
bThere are minor differences in sentencing bands according to the offender’s role within each band, with supply attracting a lower sentence than importation, and importation a lower sentence than manufacture.
cUnlike the UK guidelines, the role of the offender is taken into account at the second stage of sentencing. See Zhang v R at [126]–[127].
dTaken from UK Sentencing Council Drug Offences Definitive Guideline, 2012. Starting point is also determined by the role of the person convicted (leading/significant/subordinate).
There are drawbacks with using quantity as the main proxy for offence seriousness. In cases of manufacture or importation, drug quantity is usually easily measured. However, measuring quantity is more problematic when relying on indirect evidence such as phone records between a dealer and their clients. If there are large differences in the penalty according to whether the quantity is above or below a threshold (e.g. 5 grams) this can create problems for proportionality in sentencing. People involved in the drug supply trade may also adapt to these rules, for example by breaking transactions into smaller amounts to reduce the risk of being caught with a quantity over the threshold.
Differentiating commercial activity from ‘social supply’, in which methamphetamine is exchanged between people within a social relationship also creates problems for courts. For example, a woman who supplies her partner could easily enter the ‘commercial’ range if this pattern persists over a long period. This issue becomes even more nuanced when there is coercion or violence involved. A reduced reliance on quantity as the sole determinant of offence seriousness has already been built into sentencing guidelines in the United Kingdom (UK Sentencing Council, 2012). The UK guidelines also emphasize the social context of the offending and the role of the offender, including any coercion or power imbalance involved.
A summary of the New Zealand Court of Appeal judgment in Zhang v R
Guideline judgments
Since the 1970s, the New Zealand Court of Appeal has taken on a greater role in setting guideline judgments, whereas previously this was seen as the sole remit of the sentencing judge (Zhang v R at [44]). The Court’s approach was initially rather ad hoc and consisted of describing existing case law. Over time its approach has become more nuanced. It has aimed to respond to legislative or societal change, or concerns of inconsistency in sentencing for a particular class of offences (see Zhang v R at [44]–[48]). Guideline judgments are increasingly intended to help the lower courts achiever greater consistency in sentencing (New Zealand Law Commission, 2006). These judgments typically identify aggravating and mitigating features relevant to the class of offences under review. They then lay out sentencing bands according to the presence or otherwise of those features.
Overview of Zhang v R
In its guideline judgment in Zhang v R at [73] and [79]–[80], the Court of Appeal observed that drug use and addiction, particularly involving methamphetamine, had become a major societal problem in New Zealand. This had led to severe disadvantage in vulnerable communities, and effects often spilled over onto the children and other family members of people with a methamphetamine addiction. In view of these considerations, the Court put forward a series of eight points summarizing their approach (see [118]–[129]):
An offender’s personal circumstances and role in the offending should be given more weight in sentencing. There should be an adjustment to the quantity-based sentencing bands (see below). While there is a difference in culpability according to whether an individual is convicted of supply, manufacture or importation, it is not necessary to make this explicit, as R v Fatu had done. More flexible sentencing options were needed for less serious offences involving low quantities of the drug, including community-based sentences. Minor adjustments to the starting point ranges were needed ‘to achieve consistency and fairness’. It was not necessary to characterize the offender’s role as ‘lesser’, ‘significant’ or ‘leading’, as in the United Kingdom sentencing guidelines, though sentencing judges could use this framework, particularly in the second stage of sentencing when considering aggravating and mitigating factors. Other culpability factors including involvement in organized crime do not need to be made explicit in sentencing calculations. When offending involves low-purity methamphetamine, this allows for sentences to be ‘less stern’, as was already been the case under the previous guidelines laid out in R v Fatu.
The Court also noted the disproportionate effects of current sentencing practices on Māori, the indigenous people of New Zealand (Zhang v R [25] and [155]–[160]. In this respect the Court’s perspective was similar to other recent New Zealand government policy documents, including reports by the Chief Science Advisor (Gluckman, 2018) and a report from the government Inquiry into Mental Health and Addiction (New Zealand Government, 2019).
Revised sentencing bands
Table 1 summarizes the new and old New Zealand sentencing guidelines for methamphetamine supply offences, and compares these to the sentencing bands used in the United Kingdom, which were are referred to in Zhang v R in various paragraphs (e.g. [10], [43], [113], [116]–[118] and [126]) as a possible template for the new sentencing framework.
The revised New Zealand sentencing guidelines keep the quantity-based sentencing band structure of R v Fatu, with thresholds set at 5, 250 and 500 grams, with one extra cut point added at 2 kilograms. As shown in the table, quantity cutpoints across the jurisdictions are broadly similar. The most substantive change to New Zealand sentencing guidelines in Zhang v R is the introduction of more flexible sentencing options for the lowest band, involving the supply of up to 5 grams of methamphetamine. The lower bound is now a community sentence rather than two years imprisonment (Zhang v R at [125]), which gives judges much more scope to give non-custodial sentences. As mentioned above, the broad range of sentencing options within this band means that individual aggravating and mitigating factors can greatly alter the outcome of sentencing. The Court of Appeal preferred this option over explicit role categories as in the UK guidelines, noting at [127] that ‘the prosecution may have difficulty establishing the exact nature of the offender’s role’.
Mitigating factors
While commercial dealing in methamphetamine is clearly regarded as a serious form of offending, the personal circumstances of an offender were felt to remain an important mitigating factor. The Court emphasized the discretionary role of sentencing judges in taking into account individual circumstances commenting that ‘community-based sentences need to be a starting point open to the court, not merely an end point’ (Zhang v R, at [23] and [130]–[138]). Addiction, mental illness, duress or undue influence and social, cultural and economic deprivation were listed as important mitigating factors. The Court accepted that in cases where addiction drove the offending, deterrence was less likely to be effective; that a sentence discount should apply; and that sentencing should address rehabilitation needs. Social, cultural and economic deprivation was highlighted as an important correlate of methamphetamine use, particularly for Māori. The Court of Appeal also noted the impact of colonization on Māori, referring to ‘[…] poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity’ (Zhang v R at [159]).
Implications of the revised sentencing guidelines
The revised sentencing guidelines in Zhang v R reflect another small softening of the stance on drugs in New Zealand. They are a further step towards drug-related offending (particularly in its less serious forms) being regarded as a health issue as well as a criminal justice problem. The main change in Zhang v R is a shift towards community-based sentences and rehabilitation for people whose offending involved small quantities of the drug. However, the starting points for sentence calculations still involve long prison sentences where large quantities are involved. The wide sentencing bands mean mitigating factors including addiction or social disadvantage need to be brought to the Court’s attention at the time of sentencing. This suggests a greater role for pre-sentencing reports by appropriate medical experts. The methamphetamine sentencing guidelines also provide a useful template which could be adapted for other controlled drugs under the remit of the Misuse of Drugs Act, for example opioids.
Where to from here?
Offending involving large commercial quantities of controlled drugs will continue to attract harsh sentences for the foreseeable future in New Zealand. This type of offending is not the main focus of this article. Less serious drug offending will require an increasingly nuanced approach from the criminal justice system. Specialist drug courts are a logical forum to hear these cases. While these courts are more resource-intensive than traditional courts, they can take a more flexible approach, emphasizing rehabilitation over deterrence or punishment. Drug courts are well placed to tailor sentencing to the psychosocial factors which led to offending, thereby addressing both specific deterrence and rehabilitation aspects of sentencing. Evidence for their effectiveness is now building (Mitchell et al., 2012). However, while drug courts have been piloted in New Zealand, the very high numbers of people coming before the courts who have addiction problems means this approach is unlikely to be feasible for most people accused of drug-related offences in the short term.
As drug possession and personal use become decriminalized in New Zealand, the boundary between personal use and social supply of controlled drugs such as methamphetamine will become more contentious: possession charges are now only prosecuted if they are in the public interest, while low-level supply charges still carry a prison sentence of up to four years. Courts will therefore need to consider the social context of low-level drug offending very carefully because of the large differences in possible sentencing outcomes. Judges should also recognize that sentencing in these cases may worsen existing racial disparities, particularly for Māori.
Methamphetamine use remains a major global problem. Methamphetamine-related offending will continue to pose challenges for the criminal justice systems of those places where its use is common. The New Zealand Court of Appeal’s judgment in Zhang v R shows that such offending is not just a criminal justice concern: it is also a health and social justice problem requiring a consistent, empathic and individualized approach to sentencing.
Footnotes
Declaration of conflicting interests
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Foulds and Nutt both made expert submissions in Zhang v R.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.