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The Law and Penalties for Drug Importation in Australia

The self-professed ‘Queen of Richmond’ has been sentenced to 18 years’ imprisonment for her role in running a highly-organised international drug syndicate, which used flight attendants to import heroin into Australia.

Michelle Tran was a nail technician by day, and a drug lord outside of business hours. Now, she will spend a minimum term of 13 years behind bars.

During the sentencing hearing, Judge Michael Cahill remarked that Ms Tran inflicted “great harm to the community” when she caused millions of dollars of high-grade heroin to hit Australia’s streets.

Ms Tran pleaded guilty to one count of importing heroin and one count of trafficking heroin, relating to a three month period between October and December 2018.

Sophisticated operation using airline cabin crew

During that time, Ms Tran organised for $2.4 million of heroin to come into Australia, (worth perhaps four times that much on the streets) from Malaysia through a contact known as ‘Mr Hanoi’.

The syndicate also trafficked seven kilograms of ice and 500 grams of cocaine during that time.

The drugs were smuggled into the country using cabin crew for airline Malindo Air who split one kilo of heroin into three packages they could hide inside their bras and underwear.

The court heard that Ms Tran personally profited $20,000 per kilogram of heroin imported, and that while she made all the arrangements she distanced herself from the actual transactions involving the buying and selling of the drugs.

The court also heard that Ms Tran bragged about her ability to source the ‘purest’ heroin available in Australia and while she took an enormous sense of pride in the operation, she initially took over running the cartel from her estranged husband because she had a gambling addiction and as a result owed ‘substantial’ debts to loan sharks.

Several others also imprisoned

One of the flight attendants who smuggled the heroin one kilo at a time into Australia will spend a minimum of four years and nine months in prison.

The court heard that Zailee Zainal was recruited by the drug syndicate when it learned she was desperate to pay for her daughter’s mounting medical bills.

After drawing down on her mortgage, Zainal had taken to selling brownies and Tupperware to make ends meet. She earned just $6,500 from her role, and will likely be deported after she completes her sentence.

The businessman who picked up the heroin in Australia and exchanged it with buyers before taking the money back to Malaysia will spend a minimum of three years behind bars.

And Ms Tran’s right-hand woman, who Tran called her “soldier”, will spend a minimum of seven years in prison.

The offence of drug importation in Australia

Drug importation is an offence under sections 307.1 (commercial quantity), 307.2 (marketable quantity) and 307.3 (any quantity) of the Criminal Code Act 1995.

To be found guilty of the offence, the prosecution must prove beyond a reasonable doubt that:

  • You imported a border controlled substance, and
  • You knew the substance was a border controlled substance, or were reckless as to whether or not it was a border controlled substance.

The term ‘import’ includes to bring the substance into Australia, as well as to deal with the substance in connection with its importation.

The term ‘reckless’ means you foresaw there was a substantial risk the substance was a border controlled plant but went ahead with your actions regardless.

If the prosecution wishes to charge you with importing a marketable or commercial quantity of drugs, it will need to prove the existence of that quantity.

The relevant quantity for the purpose of drug importation offences is the pure quantity of the drugs.

So, for example, if the charges related to 1 kilogram of cocaine at a purity of 45%, the relevant weight for the purpose of the charge is 450 grams.

This is different to state offences such as drug supply, where the entire weight of the substance – known as the ‘admixture’ – is relevant.

Offence Quantity
Importing a commercial quantity of drugs (Section 307.1) ·       Ecstasy: 500 grams

·       Amphetamines: 750 grams

·       Heroin: 1.5 kilograms

·       Cocaine: 2 kilograms

·       Cannabis: 100 kilograms

Importing a marketable quantity of drugs (Section 307.2) ·       Ecstasy: 0.5 grams

·       Amphetamines, heroin and cocaine: 2 grams

·       Cannabis: 25 kilograms

 

Importing any quantity of drugs (Section 307.3) The prosecution does not need to prove a particular quantity; it will be enough to import any quantity of drugs.

The maximum penalties that apply to drug importation charges, as well as the penalties actually imposed, are reflected in the following table:

Offence Quantity Maximum Penalty Median penalty
Importing a commercial quantity of drugs (Section 307.1) ·       Ecstasy: 500 grams

·       Amphetamines:750 grams

·       Heroin: 1.5 kilograms

·       Cocaine: 2 kilograms

·       Cannabis: 100 kilograms

Life imprisonment Imprisonment (92%), with full term of 8 years and non-parole period of 6 years.
Importing a marketable quantity of drugs (Section 307.2) ·       Ecstasy: 0.5 grams

·       Amphetamines, heroin and cocaine: 2 grams

·       Cannabis: 25 kilograms

 

25 years imprisonment Imprisonment (99%), with full term of 6 years and non-parole period of 4 years.
Importing any quantity of drugs (Section 307.3) The prosecution does not need to prove a particular quantity; it will be enough to import any quantity of drugs. 10 years imprisonment Imprisonment (62%), with full term of 18 months and non-parole period of 12 months.

Charged with drug importation?

If you or a loved-one is charged with drug importation, call Sydney Drug Lawyers today on (02) 9261 8883 for advice and representation from a specialist criminal defence team that is vastly experienced in defending serious drug cases.

Have a look through our recent criminal law cases for examples of commercial drug importation cases we have won, as well as the difficult circumstances in which we have achieved bail for clients in high-profile, large commercial drug cases

The Offence of Growing Cannabis in NSW

Four men have been arrested after police raided a 49-hectare property on Bungawalbin-Whipoire road at Gibberagee around 52 kilometres south-east of Lismore and seized 7,200 cannabis plants as well as 50 kilograms of cannabis heads which were allegedly held in 20 large-scale industrial grow-houses.

The men, 37-year old Giant Hong, 35-year old Trong Tung Tan, 34-year old Khac Ngoc Mai and 20-year old Kien Sy Ngo were charged with cultivating a commercial quantity of a prohibited plant and participating in a criminal group, and refused bail in Lismore Local Court.

Detectives from the NSW Drug and Firearms Squad described the operation as “sophisticated”, stating:

“This seizure is the largest industrial grow-house cannabis crop located by NSW police since 2010 – with officers successfully removing 7,200 plants worth nearly $22 million from the property”, said Detective Superintendent John Watson.

“Several thousand of these plants were mature and ready for harvest and were located by detectives inside 20 industrial grow-houses – each equivalent to the size of an Olympic swimming pool.”

“The property itself was used solely for the purpose of cannabis cultivation and was bordered by the Bungawalbin National Park, where the environment can be challenging for police.”

“While there are indications that yesterday’s seizure may be linked to the other sites uncovered in Northern NSW, enquiries into the operations of these suspected criminal syndicates are continuing.”.

“These arrests should send a strong message to criminals using regional NSW to grow cannabis crops that you will not go unnoticed”.

The offence of cultivating prohibited plants

Cultivating prohibited plants is an offence under section 23 of the Drug Misuse and Trafficking Act 1985.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant, and
  2. The plant was a prohibited plant.

If the prosecution is unable to prove these ‘elements’, you are entitled to be found not guilty.

‘Cultivating’ means to sow or scatter the seeds produced by prohibited plants, or to plant, grow, tend to, nurture or harvest the plants.

The most frequently prosecuted cultivation charges relate to cannabis plants.

However, the offence also relates to:

  • Erythroxylon (a source of cocaine),
  • Papaver Somniferum (opium poppy),
  • Papaver orientale (Oriental poppies), and
  • Papaver bracteatum (Iranian or Persian poppies).

It is important to bear in mind that you may have a valid legal defence to the charge, such as duress, which if properly raised must be disproved by the prosecution beyond a reasonable doubt.

If the prosecution is unable to do this, you must be acquitted.

Being lawfully licensed or authorised to cultivate the plant is also a defence, as is acting in accordance with a direction given by the Commissioner of Police,

Cultivating a prohibited plant by enhanced indoor means

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant, and
  3. The cultivation took place by way of enhanced indoor means.

‘Enhanced indoor means’ is where the cultivation:

  1. Occurred within a building or structure, and
  2. Involved any one or more of the following:
  1. The nurture of the plant in nutrient-enriched water (with or without mechanical support),
  2. The application of an artificial source of light or heat, or
  3. Suspending the plant’s roots and spraying them with nutrient solution.

Cultivating a prohibited plant by enhanced indoor means for a commercial purpose

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant,
  3. The cultivation took place by way of enhanced indoor means, and
  4. The cultivation was for a commercial purpose.

‘Commercial purpose’ means:

  1. With the intention of selling it or any of its products, or
  2. With the belief that another intended to sell it or any of its products.

Cultivating a prohibited plant by enhanced indoor means in the presence of children

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant,
  3. The cultivation took place by way of enhanced indoor means, and
  4. The cultivation occurred in the presence of a child or children.

Cultivating a prohibited plant by enhanced indoor means for a commercial purpose in the presence of children

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

  1. You cultivated, or knowingly took part in the cultivation of, a plant,
  2. The plant was a prohibited plant,
  3. The cultivation took place by way of enhanced indoor means,
  4. The cultivation was for a commercial purpose, and
  5. The cultivation occurred in the presence of a child or children.

The penalties for cultivating cannabis

The maximum penalties that apply to drug cultivation offences depend on a number of factors, which are:

  • The number of plants (cannabis) or weight of plants (Erythroxylon and poppies),
  • Whether the plants were cultivated outdoors or by ‘enhanced indoor means’,
  • If cultivated by ‘enhanced indoor means’, whether the prosecution is able to prove the plants were cultivated for a ‘commercial purpose’,
  • Whether the plants were cultivated in the presence of a child, and
  • The court in which the case is finalised.

Here are the maximum penalties:

Cultivate Prohibited Plant

Number of Cannabis plants Maximum Penalty
Local Court District Court
Less than or equal to small quantity (‘small quantity’) 1 – 5 2 years imprisonment and/or $5,500 fine.

 

10 years imprisonment and/or $220,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 2 years imprisonment and/or $5,500 fine.

 

10 years imprisonment and/or $220,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 250 2 years imprisonment and/or $11,000 fine. 10 years imprisonment and/or $220,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 251 – 1000 Not applicable 15 years imprisonment and/or $385,000 fine
More than large commercial quantity 1001 or more Not applicable 20 years imprisonment and/or $550,000

 

Cultivate Prohibited Plant by Enhanced Indoor Means

Number of Cannabis plants Maximum Penalty
Local Court District Court
Less than or equal to small quantity (‘small quantity’) 1 – 5 2 years imprisonment and/or $5,500 fine.

 

10 years imprisonment and/or $220,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 2 years imprisonment and/or $11,000 fine. 10 years imprisonment and/or $220,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 15 years imprisonment and/or $385,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 200 or more Not applicable 20 years imprisonment and/or $550,000

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose

Number of Cannabis plants Maximum Penalty
Local Court District Court
Less than or equal to small quantity (‘small quantity’) 1 – 5 Not applicable

 

10 years imprisonment and/or $220,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 Not applicable 10 years imprisonment and/or $220,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 15 years imprisonment and/or $385,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 200 or more Not applicable 20 years imprisonment and/or $550,000

Cultivate Prohibited Plant by Enhanced Indoor Means in the Presence of Child

Number of Cannabis plants Maximum Penalty
Local Court District Court
Less than or equal to small quantity (‘small quantity’) 1 – 5 2 years imprisonment and/or $5,500 fine.

 

12 years imprisonment and/or $264,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 2 years imprisonment and/or $11,000 fine. 12 years imprisonment and/or $264,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 18 years imprisonment and/or $462,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 200 or more Not applicable 24 years imprisonment and/or $660,000

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose in the Presence of Child

Number of Cannabis plants Maximum Penalty
Local Court District Court
Less than or equal to small quantity (‘small quantity’) 1 – 5 Not applicable

 

18 years imprisonment and/or $462,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 Not applicable 18 years imprisonment and/or $462,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 18 years imprisonment and/or $462,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 200 or more Not applicable 24 years imprisonment and/or $660,000

However, it is important to bear in mind that these are the maximum penalties, and the court has discretion to apply any of the following penalty-types:

Going to court for cannabis cultivation?

If you or a loved-one has been charged with cannabis cultivation, call Sydney Drug Lawyers anytime on (02) 9261 8883 to arrange a free first consultation or a prison visit with one of our experienced defence lawyers during which we will explain the legal situation, the available options and the best way forward, and fight for the optimal outcome whatever the situation may be.

When Can Officers Perform Body Cavity Searches?

Preparations are being made to pursue a class action lawsuit against the NSW Police Force over their practice of conducting unlawful strip searches.

Whilst ‘regular’ strip searches are certainly embarrassing and demeaning, internal body cavity searches can be downright humiliating and cause a lasting psychological impact – especially on children and those who have previously been sexually assaulted.

Here’s a thumbnail sketch of the rules relating to body cavity searches.

Searches by police officers

Internal searches are classified as an ‘intimate forensic procedure’ and cannot be undertaken by law enforcement as part of a strip search or other bodily search.

Generally, an internal search of a body cavity does not include a person’s mouth, which can be visually observed as part of a personal search.

Police can only search your bodily cavities with your consent or after they have obtained a court order authorising the search.

This applies even if you are under arrest.

Police may be able to intervene if they observe you attempting to swallow or insert drugs into a body cavity that may be harmful to ingest. This is done to prevent self-harm and is not considered ‘a search’.

Generally, you should not feel compelled to consent to an internal search by police unless a warrant has been issued.

Searches by customs officers

Broader powers for internal searches exist for customs officers who wish to detain and search a person who they suspect on reasonable grounds is unlawfully internally carrying prohibited goods such as illicit drugs.

Customs officers can carry out an internal non-medical scan using ‘prescribed equipment’ if a person consents or if a court order is granted allowing the internal ‘scan’.

If consent is not granted or if an internal non-medical scan indicates the presence of an internally secreted prohibited good, senior members of Customs or a member of law enforcement can apply to a judicial officer have a person detained for a further search.

A more in-depth internal medical search can occur if a detained person consents or a court order is granted. An internal medical search can only be undertaken by a medical practitioner.

Searches by corrections officers 

NSW Corrections officers have a number of procedures relating to searching inmates for contraband.

Correctional officers must not internally search an inmate for contraband. However, if an officer suspects that an inmate is attempting to conceal contraband internally the officer may use necessary force to restrain the inmate’s hands to prevent the concealment.

If an inmate is suspected of internally secreting contraband, correctional officers must arrange for the inmate to be clinically assessed to determine possible threats to their health.

An inmate suspected of internally secreting contraband may be held in a ‘dry cell’ (without toilet or running water) pending a clinical assessment.

A medical practitioner may remove internally secreted contraband if it poses an immediate risk to health, with consent or following a court order granting its removal. An X-ray or other medical imaging procedure may be performed to detect the presence of contraband.

The Use of ‘Ice’ and the Criminal Justice System

There is an argument that coverage by the mainstream media of the drug crystal methamphetamine (or ‘ice’) has skewed both public perceptions about the drug itself and its users, as well as the way in which users are dealt with by those involved in the criminal justice system.

This article attempts to separate fact from fiction, and to explain how the use of drugs can impact on the way in which defendants are dealt with by the courts.

The effects of ‘ice’

Ice speeds up messages between the body and brain increasing energy, reducing appetite and increasing heart rate.

At moderate doses, it can make people nervous and agitated but, at high doses, it can cause more worrying effects including psychosis, paranoia and aggression.

A correlation between ice use and offending does exist, but the relationship is more complex than you would think.

The Drug Use Monitoring in Australia (DUMA) program detects the presence of illicit drugs in the urine of people entering custody in Australia. In 2018-19, fifty-two percent of detainees who participated in DUMA tested positive for methamphetamine. This was by far the most prevalent illicit drug detected, higher than cannabis.

Whilst this indicates a relationship between ice use and offending, research attempting to establish a direct link is mixed.

A 2006 paper looking at the relationship between ice use and violence in NSW found insufficient evidence for a direct-link between ice consumption and violence. However, it did note a relationship between methamphetamine-induced psychosis and offending.

More recent research has found that the relationship between ice use and violence is stronger if defendants are frequent users of high purity methamphetamine, as opposed to occasional or recreational users.

Moreover, ice use tends to be more common amongst people who have other risk-factors for offending – such as impulsiveness – meaning ice can exacerbate an existing predisposition to violence, rather than causing violent behaviour directly.

Overall, the relationship between ice use and offending is far from straightforward.

Is Ice Use A Defence?

There is a common misconception in the community that the criminal justice system treats drug users more leniently, or considers drug dependence (addiction) a ‘defence’.

This is not the case.

Part 11A of the Crimes Act 1900 (NSW) outlines the general principles that apply to self-induced intoxication, including whilst ‘high’ on illicit drugs such as ice.

A distinction is made between someone willingly getting high (self-induced intoxication) and people who are drugged without their consent.

Generally, self-induced intoxication is not relevant to determining a guilty mind for most offences (s428D), including murder, manslaughter and assault causing death (s428E).

If an offence requires asking the question of what a reasonable person would do, the court will consider the state of mind of a reasonable sober person, regardless of whether the defendant was high at the time (s428F).

Section 428C states that self-induced intoxication can be considered when an offence requires specific intent (for example, an intent to cause injury) but not if a person had intended to commit the crime before getting high or got high in order to commit the offence.

Overall, being high on ice at the time of offending it is not defence.

When Can Addiction Be Considered?

If someone is dependent (‘addicted’) to ice, this may be raised within the context of a diversion program, Drug Court referral or during the sentencing of an defendant.

Drug addiction is not inherently a mitigating factor in sentencing and courts do not normally take the fact that the defendant was addicted as a good reason to give a lesser sentence.

The reason behind this was outlined by Spigelman CJ in R v Henry (1999) 46 NSWLR 346 whilst sentencing a defendant for a robbery offence:

“The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse”

However, drug addiction may be considered in some circumstances including:

  • Whilst assessing prospects of rehabilitation.
  • As an indicator of relevant mitigating factors such as social disadvantage, poverty or mental health issues.
  • If the defendant became dependant at a very young age, where it couldn’t be considered a personal choice.

Going to court?

If you have been accused of a criminal offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward.

What Are the Rules For Accessing and Selling ‘Poppers’ in Australia?

By Jarryd Bartle and Ugur Nedim

New laws relating to the sale of alkyl nitrite products – also known as ‘poppers’ – come into effect on 1 February 2020.

The changes, made through the Therapeutic Goods Administration (TGA), have created general confusion and led to concerns amongst the homosexual and bisexual community, who feel they are being unfairly targeted.

What Are Alkyl Nitrites?

Alkyl nitrites are the broad chemical name for a range of psychoactive chemicals including amyl nitrite, isoamyl nitrite, isopentyl nitrite and isopropyl nitrite.

The substances have been used to relieve a range of medical conditions, including angina and other heart conditions. But they are also used recreationally as a sexual aid, predominantly by homosexual and bisexual men.

The primary effect of ingesting alkyl nitrites is an increased heart rate and blood flow throughout the body.

Inhalation has a relaxing effect on involuntary smooth muscles, such as those in the throat and anus. As a result, the substances are used as a sexual aid for anal sex by increasing blood flow and relaxing sphincter muscles.

Alkyl nitrite products have been popular within the gay community since the 1970s, when they began to be sold in sex shops and used in gays bars and bathhouses.

Their popularity continues until today – according to a recent survey, 32.1% of Australian gay and bisexual men in Australia have used alkyl nitrites as a recreational drug within the last 6 months.

The Changes

In 2018, the TGA announced it would look at tightening the rules regarding the sale of alkyl nitrites due to their widespread, relatively unregulated sale within sex shops – where they are sometimes labelled as ‘leather cleaners’.

The TGA also expressed concerns about a reports that the alkyl nitrites n-propyl nitrite and isopropyl caused eye damage.

The administration originally proposed rescheduling all alkyl nitrite products to Schedule 9 under the National Poisons Standard.

This caused a strong backlash amongst the LGBTIQ community, who saw it as a backdoor way of criminalising them by placing the substances in the same category of many other illegal drugs.

In a joint submission, the Australian Federation of AIDS Organisations and National LGBTIQ Health Alliance argued that the TGA “significantly overstates the toxicity of the substance and the potential for problematic use” and “ignores the benefits associated with the therapeutic use of alkyl nitrites as a muscle relaxant to make sex less painful for gay and bisexual men and sex workers.”

In response, the TGA revised its approach to reflect community concerns. A final decision was made on 6 June 2019 to:

  • Make all alkyl nitrite products ‘prescription-only’ substances by default (Schedule 4 under the Poisons Standard).
  • Move amyl nitrite in preparations for therapeutic use to a category allowing for over-the-counter pharmacy sales (Schedule 3).
  • Up-schedule n-propyl nitrite and isopropyl nitrite to being prohibited substances due to their implication in eye damage (Schedule 9).

This change was cautiously welcomed by some LGBTIQ groups, as it appeared to allow alkyl nitrite products to be purchased via prescription at pharmacies.

But once the dust settled, it became clear that this could lead to practical barriers to access.

Barriers to Access

Many in the LGBTIQ community believe that having to see a doctor for a prescription and then present that prescription to a pharmacist will cause significant embarrassment to members of an already heavily stigmatised community, and is unnecessary given the relative safety of poppers.

There are concerns that many, too embarrassed to go through the process, will simply not seek to access the substance.

In addition, LGBTIQ activist Joshua Badge found that when he attempted to have a prescription filled last year, there was significant confusion amongst both GPs and pharmacists about the relevant rules.

“Multiple doctor’s visits, dozens of calls, hours of travel time, weeks of waiting… and nothing to show for it. In the end, LGBTIQ people and folks wanting to have enjoyable sex face a gauntlet of stigma, medical jargon, time-consuming hassle and criminalisation.” Badge wrote in Junkee.

The quest to have an amyl nitrite product available over-the-counter at pharmacies also seems unlikely, as there are no current “preparations for human therapeutic use” on the market.

To be readily available on the market a manufacturer would need to register, manufacture and distribute an amyl nitrite to pharmacies, a process which hasn’t occurred.

“It may be two years before we see amyl nitrites in the marketplace” predicted Simon Ruth. CEO of Thorne Habour Health, an organisation that specialises in services for the LGBTIQ community.

Magistrate Dismisses Drug Driving Charge for Medicinal Cannabis User

A driver who was prescribed medicinal cannabis oil for his multiple sclerosis has had his drug-driving charge dismissed by an Adelaide Magistrate.

Brenton Peters is one of over 3000 Australians legally prescribed cannabis oil, but was facing significant penalties for driving with a detectable amount of THC in system.

In a significant decision, Magistrate Susan O’Connor dismissed Peter’s case citing the fact that there was no indication he was impaired or a danger to other drivers.

Here’s what the decision means and why people are still calling for reform of drug-driving laws in South Australia.

Drug Driving Laws

Like in NSW, it is an offence in South Australia to drive or attempt to drive a motor vehicle whilst a prescribed drug is present in your oral fluid or blood.

Mr Peters was pulled over by police and undertook a saliva drug test which came back with a positive result for THC, the psychoactive component in cannabis.

Cannabis is a prescribed drug under the law, regardless of whether it has been prescribed for medical reasons.

Penalties include a criminal record, licence disqualification and fines.

Offences which relate to legal, prescription drugs in South Australia focus on penalising use where someone is “incapable of exercising effective control of the vehicle” rather than having a detectable amount.

Advocates for medicinal cannabis reform have criticised current laws for being unfairly discriminatory, particularly given different rules apply to other prescription drugs

Medicinal cannabis users have been warned against driving for at least 48 hours after consuming a cannabis product to avoid a positive saliva test.

However, in one infamous NSW drug-driving case, THC was detected via a saliva test of a driver who consumed cannabis a week prior.

Clearly, the current laws provide little certainty for medicinal cannabis users.

Dismissing the Charge

South Australian legal commentators say that Magistrate O’Connor found Mr Peters guilty of the offence, but then dismissed the charge without proceeding to a criminal conviction due to the circumstances of the case, as well as the defendant’s other personal factors.

The South Australian law is similar to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 in New South Wales, which allows a magistrate to exercise his or her discretion to dismiss a charge without recording a conviction even if a person is technically guilty.

The factors relevant to a determination under section 10(1)(a) in NSW are:

  • the person’s character, antecedents, age, health and mental condition,
  • the trivial nature of the offence,
  • the extenuating circumstances in which the offence was committed, and
  • any other matter that the court thinks proper to consider.

Magistrate O’Connor warned Mr Peters that he will receive a criminal conviction if he drives with cannabis in his system in the future.

Need for Reform

Given the limitations of current drug-driving laws for medicinal cannabis users, many people are calling for reform.

In 2017, an attempt was made by South Australian Dignity Party MLC Kelly Vincent to reform laws for medicinal cannabis users to allow a defence to existing drug-driving offences.  However, this part of the amendment failed to pass through both houses.

“As with other legal medications, [medicinal cannabis] users should be able to be assessed against their personal capacity to drive” Ms Vincent told Sydney Criminal Lawyers® in 2017.

There has been a steady increase in patients approved for medicinal cannabis in Australia, with the TGA granted 25,182 applications from doctors to prescribe cannabis in 2019. This means a large number of patients are currently at risk under existing drug-driving laws.

Alternative models for drug driving testing are available. For example, Norway has been assessing drug levels in a driver’s system (as opposed to any detectable amount) since 2012. This ‘drug level’ approach was also implemented in the Netherlands in 2017.

This recent case follows a number of positive decisions in regarding to medicinal cannabis charges in South Australia.

Jenny Hallam, who was facing prison time for providing chronically ill patients with the cannabis oil free of charge, was given a two-year good behaviour bond last year by SA District Court Judge Rauf Soulio.

Clearly many people, including members of the judiciary, feel that it is time for cannabis reform.

Berejiklian Bins: A Futile Move By a Failing Premier

NSW deputy state coroner Harriet Grahame recently recommended the implementation of pill testing and the removal of drug dogs at music festivals to prevent people from taking substances that can prove fatal, panic overdosing and preloading on drugs to avoid police detection.

NSW premier Gladys Berejiklian came out on Wednesday with her government’s response to these life-saving recommendations made by an expert charged with ascertaining why six young people died in drug-related circumstances at festivals over the last two summers.

And what did Berejiklian announce? She’s going to implement amnesty bins at festivals, which are designed to be an accompaniment to pill testing operations. They allow people – who’ve had their drugs tested to see if they could prove fatal – to throw them out.

The premier said the provision of bins will allow people that “see police or other activity” to not panic, but throw their drugs away. “Other activity” is presumably code for drug dogs. And as well, Gladys saw fit to declare that she’s “closing the door” on pill testing.

What is she on, anyway?

Respectfully, Ms Berejiklian has never taken any drugs, neither does she have a medical background, and further, she ignores the evidence-based recommendations made by the experts, so she has no idea how ridiculous and harmful what she’s saying in regard to these issues actually is.

Although, the premier could consider a couple of things before she gets more blood on her hands, such as people have pretty much always taken drugs and the fact that some die, hasn’t stopped this. Just in the same way that alcohol deaths haven’t prevented people from enjoying a glass of chardy.

When people go to the trouble of sourcing drugs and paying for them, they don’t expect to die, as the majority of them don’t. When they preload prior to a festival, or panic ingest, they don’t expect to die then either. They’re actually trying to avoid drug dogs and strip searching obsessed police.

If Ms Berejiklian followed the deputy coroner’s recommendations, young people could walk into a festival have their drugs tested, have a discussion with a health expert, avoid taking potentially lethal doses or toxic substances and they could even use her thoughtfully provided bins if they chose to.

And let’s face it, there’s always going to be that person who refuses to use their seatbelt, even though it’s provided, and ends up paying with their life because of it.

A veteran in preventing drug deaths  

The harm reduction programs Dr Alex Wodak has played an integral part in seeing rolled out have saved countless lives in this country. On whether the amnesty bin idea is going to save lives, he said “the answer, unfortunately, is a clear no”.

And as far as the president of the Australian Drug Law Reform Foundation is concerned, the door is definitely still open on “further discussion of pill testing to reduce deaths”. He added that while “saturation policing, strip searches and sniffer dogs might be clever politics”, they don’t work.

“At some time in the future, state and territory governments throughout Australia will accept the overwhelming arguments for providing testing at youth music events and also at fixed sites,” Dr Wodak told Sydney Criminal Lawyers.

“Until policy changes, there will be more needless, preventable deaths.”

Another Young Life Lost at a Music Festival: It’s Time for Pill Testing

By Sonia Hickey and Ugur Nedim

Just last month, New South Wales Police Commissioner Mick Fuller expressed the view that our law enforcement’s current ‘zero tolerance’ approach to drugs is ‘working’, and that pill testing is not an option for our state.

In the same breath, he was adamant police would not be implementing two of the most significant recommendations made by NSW Deputy Coroner Harriet Graeme after her inquiry into drug-related deaths at music festivals.

Ms Graeme’s draft final report is the culmination of months of inquiry into the harrowing drug-related deaths of several teenagers at music festivals. In it, she makes recommendations for a trial of pill testing and the abandonment of sniffer dogs, as well as the reduction of strip searches, and the decriminalisation of drugs taken for personal use at music festivals, amongst 28 other points for consideration.

Another drug-related music festival death

But, as the summer season of music festivals kicked off with Strawberry Fields this weekend, one life has already been lost to a suspected overdose.

A 24-year old man allegedly consumed a cocktail of illicit drugs before he was brought to a medical tent.

Medical staff were told he had consumed multiple substances including GHB, MDMA and cocaine.

Soon after, he suffered a fatal heart attack and, despite the efforts of the medical staff, he was pronounced dead in the early hours of Sunday morning.

An avoidable death?

Of course, it is too early to tell whether his death could have been avoided. An autopsy and toxicology reports will help to piece together what occurred in the lead up to the tragedy.

There will be questions about the purity of the drugs in his body, the amount of drugs he had consumed, the circumstances which led him to ingest the drugs, and whether the medical staff were adequately equipped to deal with his situation.

This information will be crucial to understanding the final hours of this young man’s life.

Young people will take drugs, despite the law

But what remains abundantly clear, and consistent in this tragedy and the others that have gone before it, is that young people are still taking drugs at music festivals, despite what the law says and the use of law enforcement tools such as drug detection dogs.

During the same weekend, 13 people were allegedly found in possession of drugs at another gig in New South Wales, Festival X, at Sydney Olympic Park.

Was the coronial inquest in vain?

And, as countless of experts have already pointed out, it’s remiss of us to ignore the fact young people will continue to take drugs because, in doing so, we continue to do nothing to minimise the chance of death.

As a result of last year’s coronial inquest, which looked into deaths at festivals, the behaviour of young people when sniffer dogs are present, as well as the potential impact of pill testing, we have a great deal of information about why young people have died and how this might be prevented.

As the Coroner’s Court heard, research suggests that 10 per cent of people who encounter sniffer dog operations engage in the dangerous practice of swallowing all of their drugs at once, which can lead to overdose.

What’s more, the Court heard the dogs produce false positives – where they make a positive indication but no drugs are found – two-thirds of the time at festivals, and yet they are being used to justify bodily searches, including invasive and humiliating strip searches.

LECC hearings into strip searches

This week, the Law Enforcement Conduct Commission (LECC) is set to begin public hearings into the strip-searches carried out at the Lost City music festival, an under-18s event held in Sydney in February.

The hearings are part of an ongoing investigation by the LECC, which has already heard a number of distressing stories from the Splendour in the Grass Music Festival.

If there is one positive to come out of the weekend’s music festivities, it is that it would appear that the New South Wales police may have conceded on one of the recommendations from Assistant Coroner Harriet Graeme’s report – decriminalising illicit drugs for personal use.

Police can fine alleged offenders for drug possession

The 13 people found with prohibited drugs at Festival X were dealt with by way of Criminal Infringement Notices (CINs) and fined $400.

CINs are also known as ‘on-the-spot fines’ and mean that police can fine a person rather than sending them to court. CINs do not come with a criminal record, but a person may face the prospect of a criminal record if they elect to challenge the fine by taking the case to court.

Over the coming months, music festivals will face much higher scrutiny than ever before, particularly in light of findings of last year’s coronial inquest.

The NSW government remains under increasing pressure to change its current tactics for policing drugs at music festivals, particularly its stance on pill-testing as a harm minimisation measure, which it has steadfastly refused to consider. 

Only time will tell whether or not the Coronial Inquest’s recommendations will be followed.

Pill Testing: Premier and Police Commissioner Have Their Heads in the Sand

The State Government is adamant New South Wales won’t be implementing two of the most significant recommendations made by the Deputy Coroner after her inquiry into drug-related deaths at music festivals.

Harriet Graeme’s draft final report, recommends a trial of pill testing as well as the abandonment of sniffer dogs, the reduction of strip searches, and the decriminalisation of drugs taken for personal use at music festivals, amongst 28 other points for consideration.

‘Sufficient evidence’ to support a pill testing trial

While conceding that supervised drug testing wasn’t a ‘magic solution’ Ms Graeme said she was in ‘no doubt whatsoever’ there is sufficient evidence to support a trial in New South Wales.

Now NSW Police Commissioner Mick Fuller has provided his response loud and clear, and surprise-surprise, he says the police service does not support pill testing in any form because it is ‘flawed and unreliable’ and sends a dangerous message of false confidence to young people that the drug they want to take is safe, because there is no such thing.’

Premier Gladys Berejiklian has also dismissed Harriet Graeme’s suggestion.

But so far, the New South Wales State Government’s tough zero tolerance stance, measured by arrests and festival bans, has proven time and again that it is not the most effective way to save lives either, because it usually results in young people ‘loading up’ before entering a festival or event, therefore increasing their risk of overdose.

In fact, during the inquest into five-festival related deaths, the Coroner’s Court heard research suggested that 10 per cent of people who encountered sniffer-dog operations engaged in the dangerous practice of swallowing all of their drugs at once.

The inquiry also looked at the use of drug detection dogs, which have been shown to be ineffective as much as two-thirds of the time, and yet they are usually the only determining factor behind police order a strip search, well as their use by police in determining strip searches, a highly invasive policing procedure that has also faced a barrage of criticism not least of all for its potentially damaging psychological effects but also because in a significant number of cases, it is carried out illegally.

Educating young people about drugs can backfire

The New South Wales’ Government’s other weapon in the war against drugs – education – has also proven to be a double-edged sword, with the Coronial inquest hearing that one student in 20 had tried MDMA by the time they’ve reached year 10.

The risk of providing drug education early is that people will be curious about trying it. On the other hand, leaving drug education later could mean it was ‘too late’ to warn young people of the dangers of drugs.

Pill testing can save lives

Pill testing has been trialled in Europe successfully for many years. In particular the Drug Information and Monitoring System operation in the Netherlands has proven itself to be a system that can assist with not only harm minimisation through drug testing, but also by collecting valuable data that can better inform festival planning and more targeted education. More recently, it’s trail in Canberra has also shown positive results.

It’s important to note that while the Coronial Inquest did highlight the fact that pill testing may save lives, it is not in itself, a complete solution. A range of factors including fixing the problem of ill-equipped first aid services at festivals, as well as intense heat and no access to drinking water, which contributes to dehydration also need to be addressed so that young people can enjoy summer music festivals safely.

But the parents of Diana Nguyen, Joshua Pham, Joshua Tam, Callum Brosnan, Nathan Tran and Alex Ross-King who died after taking the drug MDMA at music festivals in the summer of 2018/2019 and whose deaths were at the centre of the inquiry are never the less imploring the state government not to ignore the recommendations nor waste an opportunity to try pill testing.

Before these five MDMA-related deaths at music festivals in NSW last summer, there had been only 12 across Australia in the previous decade. But as well as those fatalities, there were 29 pre-hospital intubations at 25 music festivals in the state in 2018-2019, as well as 25 drug-related intensive care admissions, and at least an additional 23 drug-related hospital admissions.

Sniffer Dogs are Ineffective in Detecting the Presence of Drugs

By Sonia Hickey and Ugur Nedim

The use of drug detection dogs is controversial to say the least, with study after study finding that the dogs have an incredibly high margin for error, and that their presence can lead to dangerous drug-taking activity, such as ‘loading up’ and ‘pre-loading’, which has led to the deaths of several young people in music festivals across Australia.

Handling money or shaking a hand can lead to a positive indicatio

Now, a former police dog trainer has acknowledged that another problem is that while the animals are indeed able to detect the presence of drugs – a positive indication can be the result of residue from items such as currency or even a handshake with a person who used a substance, and not just the actual presence of drugs.

This information has bolstered the argument that a positive indication by a sniffer dog is not sufficient, by itself, to ground the ‘reasonable suspicion’ required to search a person.

Teenage girl strip searched after a positive indication, but nothing found

Just a couple of months ago, a teenager stood in front of the New South Wales Law Enforcement Conduct Commission (LECC), explaining that after a positive indication by a drug detection dog on her way into the Splendour in the Grass music festival last year, she was separated from her friends, and then taken, alone by police into a tent and strip searched. At the same hearing, a New South Wales police officer admitted that many of the strip searches undertaken at music festivals across the state may have been conducted illegally.

Many of these strip searches – a degrading and invasive procedure – have also been undertaken unnecessarily too, because they’re based on a positive indication by a drug detection dog, and various research shows that the dogs are wrong as much as two-thirds of the time, meaning the searches turn up nothing.

Sniffer dogs were introduced to New South Wales around the time of the Sydney Olympics, but even after two decades as part of the police armoury in the war against drugs, instead of catching drug suppliers, or deterring drug users and dealers, drug dog operations have led to tens of thousands of innocent people being subjected to the humiliation of strip searches.

High margin for error

Research from New South Wales shows that the margin for error of sniffer dogs as much as 63%. And here’s why: the purpose of police dogs is to detect people in possession of drugs. The problem is, the dogs are exceptionally sensitive to the scent of drugs, so much so, they are able to pick up minute traces of residual drugs, which could indicate any number of scenarios – perhaps previous use of drugs by a person, or even just that someone has touched drugs, or drug equipment, or a hand of another user, without actually ingesting drugs themselves.

Dave Wright, a former NSW Police dog trainer, explains that dogs are trained through a process of conditioning to recognise and indicate the odour of prohibited drugs.

He says that while the training is highly effective, ultimately it does mean that dogs are not necessarily able to tell the difference between a residual scent and the scent of someone actually in possession of drugs.

What’s more, he says, because the dogs are highly sensitised, it is possible that they will provide a positive indication if someone has been carrying drugs, if someone has had (even limited) contact with drugs in the past, or if, for example, they are carrying money that’s been previously handled by a drug user, or was in a confined space with drugs…. or any number of potential scenarios.

So, are drug dogs’ noses too sensitive to be successful?

If police are using an indication by a sniffer dog as the sole basis to justify ‘reasonable grounds’ to search a person, isn’t it then also possible to arguable that the rates of strip searches that result in a positive finding of drugs are not substantial enough to support grounds for a strip search simply on suspicion?

Over the last five years, reports have indicated that the use of strip searches by NSW police following a positive indication from a drug detection dog has increased markedly.

Under New South Wales law, police can search you if they have a ‘suspicion on reasonable grounds’ that you have drugs on you at that particular time.

However, when the NSW Government passed the Police Powers (Drug Detection Dogs) Act 2001 (‘the Dogs Act’), The Act had a built-in review provision, whereby the Ombudsman would evaluate its effectiveness after two years.

The review was released mid-way through 2006. It had examined 470 drug dog operations over two years. It also found that prohibited drugs were located in only 26 per cent of the recorded positive indications by drug dogs.

Are there better ways to handle drug possession and use?

Furthermore, of the 10,211 positive indications made, there were only 19 successful prosecutions for drug supply – which represented 0.19 per cent of those searched.

The review concluded that “the use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers” and with regard to the question of whether a positive indication by a drug dog is ‘reasonable suspicion’ for a police search, the report broadly concluded that: “Given the low rate of detecting drug offences following a drug detection dog indication, it is our view, supported by Senior Counsel’s advice, that it is not sufficient for a police officer to form a reasonable suspicion that a person is in possession or control of a prohibited drug solely on this basis.”

Despite these findings that drug detection dogs are ineffective, the number of searches performed after positive indications has continued to increase dramatically.

Figures recently obtained by the Greens MLC David Shoebridge via freedom of information (FOI) laws revealed that the number of strip searches conducted by police following a dog indication have almost doubled: up from 590 in 2016 to 1,124 in 2017.

While the LECC is continuing to investigate strip searches, with a view to understanding how and why these are being conducted by police and whether or not they are being carried out within the specific guidelines of the law, late last year the Redfern Legal Centre, also launched its Safe and Sound campaign, aiming to reduce the high number of strip searches at music festivals and at other places. It’s also agitating to have the current laws changed, so that police officers have more guidance and the public is better safeguarded.

Of course, this also begs the question of whether or not there’s a better response to the war on drugs and certainly at events such as music festivals harm minimisation measures such as pill testing is still being advocated for.

So far, the New south Wales government has remained steadfast with its outdated ‘just say no’ to drugs view, but the outcome of the LECC inquiry into strip searches and the recent Coronial inquiry into drug -related deaths at music festivals may be successful in finally bringing some more options to the table. Options that aren’t as expensive, as invasive, and which preliminary research shows are more effective. Because what we do know, is that the current ‘zero tolerance’ policy is not working.