Author Archives: Sydney Drug Lawyers

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Sydney Drug Lawyers is a subsidiary of Sydney Criminal Lawyers® which specialises in drug cases.

Legalising Cannabis Does Not Lead to a Rise in Crime

By Zeb Holmes and Ugur Nedim

An extensive study conducted in the United States suggests that legalising cannabis has not led to a rise in either property crime or violent crime.

The research adds further credibility to calls for cannabis legalisation in Australia, helping debunk the conservative myth that cannabis use leads to criminality.

Imprisoning the indigent

The US currently imprisons nearly 2.3 million people, which is the largest prison population on earth.

A significant portion are behind bars for low level offending, including repeated low level drug offences such as drug possession.

The nation disproportionately imprisons the poorest and most vulnerable, including African and Latino Americans, and mandatory sentencing policies such as ‘three strikes’ laws ensure low level felonies lead to lengthy prison sentences, even life imprisonment.

The study

The recent study, published in the Journal of Economic Behaviour and Organization, used crime rate data from 1988 to 2013 from states which initially decriminalised medicinal cannabis, many of whom proceeded to legalise the use and possession of the drug.

Researchers compared that data with year-by-year averages from states which did not legalise the plant, finding no discernible difference.

The Californian experience

California was the first jurisdiction in the United States to legalise medicinal cannabis in 1996, with 30 states and the District of Columbia later following in its footsteps.

Over the period of the study, violent and property crime rates have dropped by 20%.

It is important to note that, as is the case in NSW, these types of crimes have been falling throughout the US for over 30 years – and it is certainly not suggested that legalisation is a primary reason behind the reduction.

However, it should also be noted that crime rates in California have fallen at a faster rate than states that did not legalise the medicinal or recreation use of the plant, and that research has found that legalisation has now all-but destroyed the black market for the drug in the state, crushing a number of Mexican drug cartels and even leading some go out of business – with their violent crimes going with them.

The law on drug possession in New South Wales

Drug possession remains a crime in our state.

The maximum penalty for possession a prohibited drug, such as cannabis, is two years in prison and/or a fine of $2,200.

For a person to be found guilty, the prosecution needs to prove beyond reasonable doubt that he or she:

  • Had physical possession or control of a prohibited drug,
  • Knew or reasonably believed it was there, and
  • Knew or reasonably believed the substance was a prohibited drug.

If a person pleads guilty or is found guilty of cannabis possession, the magistrate can exercise his or her discretion not to impose a criminal conviction (criminal record) but, instead, dismiss the charge under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or place the person on a Conditional Release Order without conviction for up to two years.

Cannabis cautioning scheme

Since the year 2000, NSW has had a cannabis cautioning scheme which allows police officers to exercise their discretion in certain situations not to send people to court for possessing cannabis.

Police can only issue a cannabis caution to adults who have not previously been convicted of a drug offence, a sexual offence or an offence of violence.

A caution is only available for possessing under 15 grams of cannabis, and only two cautions can be administered upon any person.

Medicinal cannabis in New South Wales

Although laws have been passed in our state to legalise medicinal cannabis, it has proven to be far more difficult to access than in places like California, not to mention much more expensive.

In NSW, both the cannabis prescriber and product itself are required to go through the arduous process of registration and licensing.

It is legal for those suffering certain medical conditions to access medicinal cannabis under clinical trials or the Special Access and Authorised Prescriber Schemes administered by the Therapeutic Goods Administration (TPA).

As of October 2018, the TPA has approved the following medical conditions:

  • chemotherapy-induced nausea and vomiting
  • refractory pediatric epilepsy
  • palliative care indications
  • cancer pain
  • neuropathic pain
  • spasticity from neurological conditions
  • anorexia and wasting associated with chronic illness (such as cancer).

Just legalise it

Neither of the major political parties, whether on a state or federal level, support the broader legalisation of cannabis.

The Greens is the only party with seats in federal parliament to have announced a policy to legalise the use and possession of the plant across Australia.

The plan is to make cannabis available through an “Australian Cannabis Agency”, which would have the sole responsibility for distributing the product.

The new Agency would issue licendes for production and sale, as well as monitor retailers.

It would also be responsible for collecting a tobacco-style tax from consumers, which would then be used for education and treatment programs.

Federal Health Minister Greg Hunt has criticised the, asserting the (widely disproven) claim that cannabis is a “gateway drug” to other “harder drugs”.

“We do not believe it is safe, responsible or something which should be allowed”, Mr Hunt stated.

Meanwhile, Opposition Leader Bill Shorten has accused the Greens of generating “political clickbait”, making clear he does not support broader legalisation.

Defies Logic: Premier Will Intensify the War Against Drugs to Make People Safer

By Paul Gregoire and Ugur Nedim

Following the tragic drug-related deaths of two young people at the Defqon.1 festival in September, NSW premier Gladys Berejiklian tasked an expert panel with investigating how to improve safety at events like music festivals.

And in true Coalition style, Ms Berejiklian announced last week that her government had accepted in-principle the recommendations made by the panel in its report, which means she’s going to double down on failing drug war tactics.

The premier explained that in order to create a safer environment for young people at festivals, the government will be creating a new offence that will make dealers responsible for the deaths of people who buy drugs from them and subsequently die.

As well, to “ensure that offenders face swift and certain justice”, the government will be trialling on-the-spot fines of up to $500 for festivalgoers found in possession of illegal drugs.

Although the initial reaction to the announcement was disbelief, it’s hardly too surprising. The expert panel was comprised of NSW police commissioner Mick Fuller, NSW chief health officer Dr Kerry Chant and Independent Liquor and Gaming Authority chair Philip Crawford.

And what’s more, the panel made clear in their report that Berejiklian had told them prior to their investigation that her government “has no tolerance for illegal drugs and pill testing is not within the terms of reference”.

Counterproductive policing

President of the Australian Drug Law Reform Foundation Dr Alex Wodak stressed that increased policing won’t achieve its stated aims. He outlined that “senior and experienced police” have been asserting that “saturation policing doesn’t have a significant effect on drug availability”.

The doctor said that initially this admission came from retired police, including commissioners. But, these days, serving officers are beginning to admit saturation policing doesn’t work. “The political elite have also known this for at least a decade or two,” he added.

Indeed, there’s a growing number of former high-level police officers calling for a different approach to be taken to illicit substances than the one the NSW premier advocates for. The list includes former AFP commissioner Mick Palmer and ex-NSW police commissioner Ken Moroney.

And Dr Wodak further pointed out that “the two deaths that sparked this reaction occurred when saturation policing – plus sniffer dogs – had already been provided”. There was a huge police presence at the Defqon.1 festival in September, with 180 police officers deployed at the event.

Increased penalties = increased profits

The expert panel’s seventh recommendation was that a new offence of drug supply causing death be introduced. The premier said she believes the maximum penalty for this crime should be set between 10 years, and the 25 years for manslaughter.

But, Dr Wodak warns that this proposed law is likely to make selling drugs more profitable. “Dealers will raise their prices to compensate for the increased risk,” he explained. “If drug prices rise, so will profits.”

And in his estimate, once the profits increase, then they’ll be more “wannabe drug dealers” lining up as “the higher profits justify the increased risk”. And as more drug dealers appear on the scene, the obvious result would be that more drugs are sold.

“The drug market is the Achilles heel of drug prohibition,” Dr Wodak added. “That’s why political conservatives were so prominent in early support for drug law reform.”

Increasing the harms at festivals

The use of highly-ineffective drug detection dogs at music festivals has long been criticised, as their presence actually leads festivalgoers to partake in dangerous drug taking practices.

These include preloading, which is when an individual takes all of their drugs prior to an event to avoid being found in possession of them. And another detrimental effect is panic overdosing, which is when a person consumes all of their drugs at once on seeing a sniffer dog operation.

There’s been at least two recorded incidents panic overdosing in NSW, one of which was the death of James Munro at the Defqon.1 festival in 2013.

Now, if some young people attending a festival are aware that there will be police officers making the rounds of the event issuing $500 fines for drug possession, it might seem like a good idea to take all of their drugs before arrival, which, of course, could lead to overdose.

And it also seems very likely that the immediacy of an on-the-spot fine could further compel an individual who’s holding drugs at a festival and spots a drug dog to take an amount of drugs at once that could prove fatal so as to avoid the penalty.

An evidence-based approach

“Drug law enforcement has a poor record. It’s usually ineffective, often counterproductive and always expensive. In contrast, harm reduction is just the opposite,” Dr Wodak continued. “So, pill testing has a much better chance of saving lives and money.”

These days, the majority of Australians support the roll out of pill testing services at music festivals. These setups allow festivalgoers to have their drugs tested by laboratory-grade equipment and then make an informed decision about whether to take them.

The first government-sanctioned Australian pill testing trial took place at Canberra’s Groovin the Moo festival in April this year. The drugs of two individuals who used the service were found to contain a substance that can prove lethal, meaning the service potentially saved both their lives.

European nations have been employing this life-saving method for decades now. In countries like the Netherlands, Switzerland and Spain individuals can have their drugs checked at events or at permanent sites. In fact, the European Union has produced pill testing best practice guidelines.

So, many were dumbfounded when the state’s top cop Mick Fuller got on the microphone last week and stated that pill testing was a “myth” and there was “no science behind” it.

The broken law enforcement approach

Dr Wodak said that Ms Berejiklian antics were reminiscent of the famous nursery rhyme, where extra resources were thrown at something that cannot be fixed. “The Premier will now double the King’s horses and double the King’s men to see whether she can put Humpty Dumpty together again.”

“This isn’t a policy,” the doctor went on. “It’s a political strategy.” And he questioned whether it was her lack of support in the Coalition or her imminent defeat in the next election that was leading her to conduct this “drug policy grandstanding”.

“Whatever the reason is it’s hard to believe she really expects this is going to make any difference to protecting young people,” Dr Wodak concluded.

Canada Legalises Cannabis, But There’s Not Enough to Go Around

By Sonia Hickey and Ugur Nedim

Less than a week after Canada legalised recreational cannabis, the country is running out of weed.

Licensed dispensaries are struggling to keep up with demand, with some forced to post “out of stock” signs and close shop.

Canada is only second country in the world behind Uruguay to legalise (rather than just decriminalise) the use and possession of cannabis, and the world has been watching with interest as legislators rework laws, as the economy gets a boost, the black market shrinks and the government begins to reap the financial benefits of new types of taxes on private suppliers, taxes on purchases, general income tax from private cannabis-related businesses and income from state-owned businesses.

New laws

Canadians over the age 18 or 19 (depending on the province) are now allowed to possess up to 30 grams of cannabis, while households can grow up to four plants.

Canadians can also purchase the drug and related products at dispensaries, and order them through websites or shops. Some suppliers are state-owned while others are owned privately. Anyone caught selling the drug to minors will face up to 14 years in prison.

The new laws also effectively pardon those with convictions for possessing less than 30 grams of the drug.

Despite cannabis being legalised on 17 October, it’s understood that some customers began pre-ordering supply as early as September.

Statistics suggest that 5.4 million Canadians will buy cannabis from licensed dispensaries this year – which is about 15 per cent of the population.

Demand exceeds supply

A study released earlier this year by the University of Waterloo and the CD Howe Institute foresaw a supply shortage, predicting licensed producers would only be able to meet about 60 per cent of demand in the first year of legalisation.

Many who’ve missed out are angry, and growers have been unable to say exactly when they will be able to meet the demand. There are now concerns about what will happen over the coming months, as only 111 stores of a planned 250 opened their doors in time, and many of those that opened have now had to shut down due to a shortage in product. The remaining stores are set to launch by 2019, provided there is enough stock.

The Canadian cannabis market is estimated to be worth around $4.2 billion a year, and the government projects collecting nearly $300 million in taxes as a direct result of legalisation.

The government also expects to make hundreds of millions of dollars through saving money that would otherwise be spent on enforcing laws and putting offenders for small possession and limited cultivation through the judicial process.

But, the government has always maintained that one of the major reasons for introducing reform has been to bring black market operators into a regulated system, and to prevent younger people from accessing cannabis.

Implementing legalisation

Medicinal cannabis has been legal in Canada since 2001, with the Trudeau government spending the last two years working towards legalisation for all purposes. This required amended existing laws, enacting new ones, setting up a licencing scheme and formulating guidelines for distribution and sale.

Licensees are subject to strict advertising rules, similar to those relating to tobacco, and the plant can only be sold in plain packaging of a single, specified colour.

Other countries

Uruguay became the first country to legalise cannabis use and possession in 2013. In the United States, nine states and the District of Columbia have legalised the plant.

But despite moves in Australia to make medicinal marijuana legal, there are no plans by the major parties to legalise the plant for recreational use – as jurisdictions continue to criminalise the possession, cultivation and sale of cannabis.

NSW Music Festivals: Life-Saving Pill Testing Out, Saturation Policing In

By Paul Gregoire and Ugur Nedim

The NSW Police Force is continuing its assault on music festivals, while the state Coalition government has reinforced its anti-harm minimisation stance at these events.

NSW police were swarming at the recent Listen Out festival in Centennial Park. But they arrested only five individuals on supply charges, while 154 were nabbed for drug possession – an offence which many including a church-led coalition of 60 organisations is currently calling to be decriminalised.

The crackdown at Listen Out comes a fortnight after the police saturation at the Defqon.1 festival, where two young people tragically died of suspected drug overdoses.

180 officers were deployed at Defqon.1, some of whom were accompanied by drug detection dogs. Police were even observed hanging around the front of the medical tent, which is hardly an encouraging sign for any young person needing to seek help after consuming something dodgy.

In response to the deaths at Defqon.1, NSW premier Gladys Berejiklian tasked an expert panel to consider how to improve safety at these events.

But, the members of the panel are hardly an in touch and forward-thinking bunch. It’s comprised of NSW police commissioner Mick Fuller, NSW chief medical officer Kerry Chant and Independent Liquor Gaming Authority chairperson Philip Crawford.

And in her wisdom, Ms Berejiklian has stated that the panel will not be considering pill testing as an option, even though it’s an internationally-lauded evidence-based strategy that saves lives. She wants more of the failing drug war approach, such as increasing penalties for drug dealers.

Antiquated drug war tactics

“We have received an influx of messages from people reporting the excessive police presence at the Defqon.1 and Listen Out festivals,” Xiaoran Shi, admin of the Sniff Off campaign Facebook page confirmed. She added that recent NSW police statements confirm this.

Following Defqon.1, a NSW police statement outlined that a multifaceted operation – which included the Nepean LAC, Police Transport Command, North West Metropolitan Region Enforcement Squad, and the Police Dog Unit – was deployed in order to deal with the partying youths.

Ms Shi explained that the reason NSW police gives for using this “increasingly aggressive” approach is “saving lives”.

“This is darkly ironic considering the excessive police presence at Defqon.1 this year, where two young people tragically lost their lives,” Ms Shi continued. “It could not be any clearer that overpolicing does not save lives, it costs lives.”

The NSW Greens anti-drug dog campaign Sniff Off has been monitoring the ridiculously-flawed use of sniffer dogs by NSW police since 2011. Statistics show that from two-thirds to three-quarters of the time that a dog makes an indication a subsequent search results in no illegal drugs being found.

A dangerous aspect of the use of drug dogs is that they actually lead festivalgoers to partake in deadly drug taking practices, such as panic overdosing, where a person panics and swallows all of their drugs at once on seeing a drug detection dog operation to avoid getting busted.

Her head’s stuck in the sand

To lower the dangers of drug overdoses at music festivals there is a simple solution: pill testing. It’s been utilised in certain European countries – such as the Netherlands, Germany and Sweden – since the 1990s. Governments in Europe give this life-saving strategy the official thumbs up.

The ACT government was progressive enough to allow Australia’s first pill testing trial take place at Canberra’s Groovin the Moo festival in April this year. Of the 128 punters that had their drugs tested, two were found to have drugs that contained a substance that can be lethal.

That’s two lives potentially saved. But, Gladys doesn’t seem to be paying any attention.

“The NSW premier Ms Gladys Berejiklian said that she supports a zero tolerance approach to illicit drugs at youth music festivals,” remarked veteran drug law reformist Dr Alex Wodak, “what a pity that she doesn’t support a zero tolerance approach to preventable deaths of healthy young people.”

The president of the Australian Drug Law Reform Foundation suggested that if the premier was really invested in a zero tolerance approach she might consider shutting down NSW needle and syringe programs, as well as the medically supervised injecting centre in Kings Cross.

“After all, these are both pragmatic and highly effective responses to illicit drugs which are the antithesis of zero tolerance,” said the doctor, who was instrumental in bringing about both these initiatives that have saved thousands of lives in this state since they were implemented.

Looks are more important than lives

But, with NSW police commissioner Mick Fuller making up a third of the members of the music festival “expert panel” and notoriously anti-pill testing police minister Troy Grant still in office, it’s hard to see NSW authorities relenting on their seen-to-be tough on drugs stance.

Ms Shi said that after Defqon.1 and Listen out, “Sniff Off received numerous messages from people reporting that police were standing outside the medical tent, deterring genuinely ill people from seeking medical attention because they feared being questioned or searched by police.”

And to put a further nail in the coffin, Ms Shi explained that there was a stall set up selling drug testing kits at the Defqon.1 festival, and officers who had a bit of time on their hands were hanging around out the front of the store intimidating festivalgoers who were entering it.

Politicking over the lives of youths

As far as Dr Wodak is concerned, the roll out of pill testing is inevitable. And if it isn’t Ms Berejiklian who’s willing to put herself on the line in order to stop the next family’s suffering after their child dies due to a preventable overdose, then it is likely to be the next premier, or the next.

“I am not surprised when older male politicians play the grubby drug politics game,” Dr Wodak told Sydney Criminal Lawyers, as he recalled US president Richard Nixon winning the 1972 election in a landslide victory just after launching the war on drugs.

“At the risk of sounding sexist, I am surprised when a female politician uses the same grubby political strategy,” the doctor concluded. “Older generations have an absolute responsibility to make sure that they keep younger generations alive. Clearly we are not doing that.”

Deemed Drug Supply Laws Should be Abolished

By Paul Gregoire and Ugur Nedim

Eight out of nine Australian jurisdictions have deemed supply laws, which provide that an individual found in possession of more a certain quantity of a prohibited drug can be charged with supply, even if there’s no evidence of actual or even intended supply.

These laws were adopted throughout Australia in the early 1970s in response to the recommendations of a national inquiry. But the legitimacy of the laws has been questioned since that time, and Queensland later became the only jurisdiction to revoke the provisions.

In most Australian jurisdictions, there are currently at least four ways an individual can be charged with drug supply. Firstly, a person may be caught selling or distributing an illicit substance. Secondly, police may gather circumstantial evidence – such as communications and/or paraphernalia – which is suggestive of supply.

A third way is to have a quantity of drugs sufficient to support a charge of deemed supply. It’s this third avenue that has long been criticised as unjustified, and as undermining the rule of law.

Deemed supply in operation

Section 29 of the Drug Misuse and Trafficking Act 1985 (the DMT Act) stipulates that an individual found in possession of more than a traffickable amount of a prohibited drug in NSW can be deemed to have that substance in their possession for the purpose of supply.

If a charge of deemed supply is brought, it is for the defendant to prove on the balance of probabilities that the substance is in their possession for something other than supply – most commonly for personal possession, or less commonly that they are momentarily holding the drugs for someone else (nown as the Carey defence).

Schedule 1 of the DMT Act contains a list of around 200 outlawed drugs, prohibited plants, illicit drug precursors and reagents. It also outlines the traffickable, indictable, commercial, and large commercial quantities of each substance.

As the amount of any given prohibited substance increases, so do the penalties that apply – up to a maximum of life imprisonment and/or a $550,000 fine.

When personal use becomes supply

A traffickable quantity of MDMA (or ecstacy) is only 0.75 grams, which can be as little as three pills.

An individual could plausibly be found in possession of three pills for personal use, whether at home, at a music festival or anywhere else. But the law allows that instead of possession, they can be charged with drug supply.

The maximum prison time for MDMA possession is 2 years behind bars and/or a fine of $2,200. However, the maximum penalty for supplying between 0.75 grams and 5 grams of MDMA is 15 years in prison and/or a fine of $220,000 where the case is dealt with by the District Court.

Supply treated more seriously than possession

Most drug possession offenders are diverted away from the strict application of the criminal justice system, whereas if an individual is charged with drug supply, they’re more likely to be subjected to the full force of the long arm of the law.

And this situation could become a lot more drastic for people who use party drugs, as NSW premier Gladys Berejiklian has suggested that the expert panel she’s tasked with reviewing how to improve safety at music festivals consider tougher drug supply penalties.

The adoption of unjust laws

The 2015 article Deemed Supply in Australian Drug Trafficking Laws: a Justifiable Legal Provision? examines the rationale behind the adoption of deemed supply laws in this country, and outlines why they should be done away with.

Former NSW Director of Public Prosecutions Nicholas Cowdery, National Drug and Alcohol Research senior research fellow Dr Caitlin Elizabeth Hughes and UNSW Professor Alison Ritter authored the paper.

They explain that the reasoning behind the enactment of deemed supply laws were perceived difficulties in prosecuting and sanctioning drug traffickers, as well as the need for “desperate measures” to deal with the threat drug trafficking posed to the Australian public.

All jurisdictions adopted the laws. However, an overhaul of Queensland drug legislation in the mid-1980s saw deemed supply provisions dropped due to an outcry from legal and civil liberties groups, stressing that the laws were unnecessary, unjust, and impinged on the rights of the accused.

Inconsistency with criminal law

The authors point out that deemed supply laws are inconsistent with the three core principles of Australian criminal law: that there must a crime and an intent to commit it, a person is innocent until proven otherwise and the burden of proving the accused’s guilt is on the prosecution.

However, as the paper makes clear deemed supply laws completely undermine these criminal law foundations. An individual can be arrested, prosecuted and punished for drug trafficking without any actual proof of the supply or the intent to supply.

The accused from the outset is presumed to be guilty, rather than innocent. And the burden of proof is upon the accused to show that they were in the possession of the illicit substance for another purpose other than supply.

Inconsistent with international laws

The article goes on to explain that Australian deemed supply laws are out of step with drug laws in most other nations. In other jurisdictions around the world the mere quantity of an illicit drug is not enough to prove supply, and a number of other incriminating factors need to be taken into account.

The United Kingdom considered introducing deemed supply provisions in 2005. However, the proposal was thrown out as the approach was seen as “unjust, impractical, perverse and arbitrary”. One major criticism was the random setting of amounts to distinguish personal use and supply.

The harms caused to people who use drugs

Since 1985, the goal of Australia’s National Drug Strategy has been harm minimisation: reducing the harms associated with drug use. And with this it follows that drug traffickers should receive the most severe criminal punishments, and not people who use drugs.

However, as the paper explains, deemed supply provisions blur the line between drug suppliers and people who use the substances. There are documented cases where individuals found with drugs in their possession for personal use have been convicted of supply and sent to prison.

Indeed, deemed supply laws seem to be set up to penalise people for personal drug possession and small time dealers, as in cases where major crime figures are found in possession of large quantities of drugs, the reversal of the burden of proof is hardly necessary for the prosecution’s case.

Time to revoke the laws

“We recommend that deemed supply provisions be subject to legislative review or preferably abolition from Australian drug trafficking law in favour of a system where charges for supply are based on proof of actual trafficking or preparation for trafficking,” the report authors state.

They go onto explain that this would mean that a person in possession of only three MDMA pills would not automatically be presumed to have the intent to supply to others, unless there was something else that indicated they were, such as large amounts of money or a contact list.

This change to the laws “would be neither radical nor unfeasible”, according to the authors, but it would rather be “a progressive move towards proportional and justifiable drug trafficking laws”, which would rectify a poor policy decision that was make four decades ago.

‘Poppers’ to be a Prohibited Drug

By Ugur Nedim and Sonia Hickey

The Therapeutic Goods Administration (TGA) is supporting a move that could see amyl nitrite, commonly known as ‘poppers’, to be placed in to same legal category as cocaine and heroin.

The TGA is a regulatory body within the Department of Health. It is responsible for regulating prescription medicines, vaccines, sunscreens, vitamins and minerals, medical devices, blood and blood products.

It recently produced a report on ‘poppers’ recommending that anyone caught possessing or selling the substance should face criminal charges like other prohibited drugs such as cocaine, MDMA, amphetamines and heroin.

What are ‘poppers’?

Poppers are also known as liquid gold, butyl nitrite, heart medicine, and room deodorizer.

The term ‘poppers’ first started being used in the 1960s, when amyl nitrite, which was then used as a heart medicine, was sold in capsules that were cracked, or “popped”, to release the chemical.

The drug made its way onto the disco scene in the 1970s, and has been considered a recreational or ‘party drug’ ever since.

Poppers had a resurgence in popularity on the rave scene in the 1990s. Users inhale the substance for a brief rush, lasting only a few minutes, and to relax muscles, which has made it a popular drug to take during sex.

Significantly, it does not create a dependency, but users can suffer from a headache after the drug has worn off.

A legal ‘grey area’

Amyl nitrite is currently in a legal ‘grey area’ in Australia.

While the marketing or sale of products containing the drugs or its related counterparts for recreational use is illegal, amyl nitrite available for purchase behind the counter at many adult shops and online for less than $50 as ‘leather cleaner’ or ‘room deodoriser’.

Are poppers harmful?

Medical experts are divided over whether amyl nitrite causes long-term harm, although it is believed to exacerbate some medical conditions such as glaucoma, poor circulation or heart problems.

The TGA’s report found there are indeed risks and, “no therapeutic benefits associated with the use of alkyl nitrites”. It said the drugs are “toxic via inhalation” and “misused … as sex aids due to their muscle relaxant properties”.

The Australian Alcohol and Drug Foundation (ADF) says the effects of using poppers with other drugs – including over-the-counter or prescribed medications – are unpredictable as not enough research has been undertaken.

If the TGA’s recommendation to prohibit amyl nitrite is adopted, the drug will be in the same legal category as drugs like crystal methamphetamine (or ice), heroin and cocaine.

The National Drug Strategy Household Survey found 0.8 per cent of the population, or 184,000 people, in Australia had used in inhalant in 2013.

The figure, however, was not limited to poppers, and may include the substance in industrial chemicals such as paint thinners.

Futility of the war on drugs

For many, the idea that a non-addictive party drug may be placed in the toughest legal category without sufficient proof of harm is another example of the government’s illogical, inconsistent, piecemeal and ultimately harmful approach to drugs in society.

While many countries are recognising that drug use is a health issue rather than a crime and changing their laws accordingly, our regulatory bodies and governments seem to be doing all they can to resist evidence-based approaches to drugs.

In Australia, we currently have a court system clogged with drug cases, which really only benefits those with a financial interest in people being charged and punished – whether they be prison management companies like Serco, police associations who enjoy greater funding, politicians who use the war on drugs to appear tough on crime and get votes, or criminal lawyers who are able to obtain more clients.

But perhaps it’s ‘high time’ to step back and take a good hard look at the futility of the multi-billion dollar war, and change our policies and laws accordingly. Doing so may well see Australia enjoy the benefits of jurisdictions like Portugal whose politicians have been brave enough to change tack.

Know Your Rights This Music Festival Season

By Paul Gregoire and Ugur Nedim

The tragic drug-related deaths at the Defqon.1 music festival in southwestern Sydney on 15 September have gained a lot of media attention. And rightly so. But what hasn’t gathered as much attention is the saturation policing at the event.

NSW police were out in force. There were 180 officers at the festival, some of whom were accompanied by drug detection dogs. Police searched 355 festivalgoers and only 69 of these searches resulted in any illicit substances being found. So, that’s a success rate of just 19 percent.

What this means is if you plan to attend an event this season, and won’t be carrying drugs, it’s still important to know your rights because a sniffer dog may well sit next you regardless, which could result in a bodily search or even a strip search.

You have the right to remain silent

During a search, or subsequent arrest, you’re not required to answer any specific questions police ask you, except for providing your name and address. Failure to provide these details – or providing false details – can result in a fine.

In the case where drugs are found, it’s best to remain silent. This will prevent you from saying anything that might be detrimental in the long run. And whatever you do, don’t say you intended to give away or share the drugs, as this can result in a more serious charge of drug supply, rather than drug possession.

Police search powers

The police powers to stop and search a person without a warrant are contained in the Law Enforcement (Powers and Responsibility) Act (LEPRA) 2002. This legislation requires that officers must have a reasonable suspicion to carry out such a search.

Section 21 of the LEPRA provides that an officer may stop, search and detain a person without a warrant if they suspect on reasonable grounds that the individual is carrying illegal drugs, a dangerous weapon, stolen property, or anything used, or intended to be used, to commit a crime.

Reasonable suspicion

The leading authority on what constitutes reasonable suspicion is the 2001 NSW Court of Criminal Appeal case R v Rondo. It sets out that “a reasonable suspicion involves less than a reasonable belief, but more than a possibility.”

So, if an officer pulls you up for a search at a music festival they must have some “factual basis” as to why they’re doing so. And it’s best to ask the officer for the reason why they’re conducting the search.

Reasonable suspicion cannot be that an officer simply thinks you look dodgy, or they don’t like the way you’re dressed, or even if you’re in an area that’s well known for drug use or other criminal activity.

And never say to an officer of the law that you consent to a search. If you do give consent, police will no longer need to demonstrate that they had a reasonable suspicion to search you later on.

Indeed, it’s best to comply with an officer’s instructions, but also to state that you don’t give consent. This could lead to a charge being dropped or thrown out of court at a later date if it’s shown that an officer had no grounds to carry out the search.

Sniffer dogs

Section 148 of the LEPRA provides police with the power to use drug detection dogs in public places without a warrant. This includes using dogs on people at, or entering or leaving, licensed venues and events, such as music festivals, concerts, parades and sporting events.

There’s dispute over whether an indication by a drug dog actually constitutes reasonable suspicion. This is due to the fact that sniffer dogs are highly unreliable and get it wrong anywhere from two-thirds to three-quarters of the time.

However, officers do indeed search people following a positive indication made by a dog. And over recent years, these dogs have become a permanent fixture at music festivals, so be prepared that you could be searched regardless of what you’re up to.

During a search

If an officer does decide to search you, it’s best to remain calm and comply. Trying to resist can result in a charge of resisting arrest. And watch what you say, as swearing can result in a fine or a charge of using offensive language.

Section 202 of the LEPRA requires that in the event of a search, an officer must show you their badge if they aren’t wearing a uniform. They’re also required to tell you their name. And they must provide you with the reasons as to why they’re conducting the search.

Police can carry out three types of searches. A frisk search, where they run their hands down the outside of your clothing. An ordinary search, where they require you to remove items of clothing – such as a coat or shoes – and examine them. And then officers can also carry out a strip search.

Section 21A of the LEPRA also provides police with the ancillary powers to order a person to open their mouth for the purposes of a search, and to shake their hair if they suspect something is being concealed within it. Failure to comply with this request can result in a fine of $550.

It’s perfectly legal to film police in a public space, and this includes music festivals. So, if possible, have a friend stand back and film the search. The police have no powers to prevent this from happening, as long as the individual is not hindering the search.

The invasive strip search

Section 31 of the LEPRA provides that police can carry out a strip search in a place – such as a music festival – if the officer “suspects on reasonable grounds” it “is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.”

If you’re at a music festival a strip search has to be carried out in a private enclosed area, like a tent. And the search must be conducted by a member of the same sex. At no time should your body cavities – including your mouth – be searched, and you should not be touched in any way.

No one should be present other than those needed for the purposes of the search, and nor should any item of clothing be unnecessarily removed. And under no circumstances are strip searches to be carried out on children under the age of 10.

Found in possession

If drugs are located on your person, remember that apart from providing your identity, you have no obligation to speak or answer any questions. And certainly, don’t imply that the drugs were in any way for anyone else.

Be aware that if you are found with a “traffickable amount” of a substance on you, section 29 of the Drug Misuse and Trafficking Act 1985 provides that you can be charged with supply, even if there’s no evidence that suggests you’ve been supplying others. This is known as deemed supply.

As little as 0.75 grams of MDMA – or three or four pills – can be deemed supply. For cocaine, methamphetamine or heroin, three grams or more can land you with a charge of supply. And for cannabis, it’s a lot more – 300 grams.

In the case of arrest

If an officer does arrest you, it’s important to stay calm and don’t resist, as resisting could led to an escalation of the situation and more charges being laid. The best thing to do after being issued with a court attendance notice is to get in touch with an experience criminal lawyer.

A good lawyer can guide you through the process. They may be able to have the charges dropped or thrown out of court, and in the case of a charge of deemed supply, they may be able to have it downgraded to possession.

So, now that you’re aware of your rights, remember to comply with police instructions, but don’t give your consent to a search. And have a great festival season.

The New South Wales Drug Busts that ‘Never Happened’

The NSW Bureau of Crime Statistics and Research (BOCSAR) has faced up to an embarrassing error, admitting that it ‘double-counted’ many drug busts over the past seven years.

It says statistics regarding arrests for cocaine and ecstacy detection have been inflated by more than 30%, while last year more than 13,000 drug events never actually occurred.

The error arose because BOCSAR was adding police statistics on searches to those on arrest – which is a fundamental mistake as both incidents can arise from a single event.

The mistake has meant that statistics about drug detections have been significant inflated, bolstering the argument that the war against drugs is even less successful than previously thought.

Does not affect trends

BOCSAR collects data which used to identify crime trends such as location, frequency, penalties and offender details.

While BOCSAR Chief Don Weatherburn admits the fault lies within his department, he says the actual figures are less important than the patterns they show.

“It is a large number, but the crucial issue is the trend with drug offences. I’m not saying this is not a bad mistake, but it doesn’t seem to have affected the trend from March 2012 to March 2018.”

Funding and policy decisions

BOCSAR data is one of the sources of information used to assess the level of funding for law enforcement in the war against drugs. More arrests and raids can lead to more funding, while a lower rate of success can make it more difficult to justify greater government expenditure.

Between 2010 and 2011, BOCSAR released crime numbers suggesting a larger numbers of detections than were the case.

Funding for drug detection dog operations, border force operations and enforcement generally has steadily increased since that time, partly based on the false premise that police are detecting high numbers of drug crimes.

And funding keeps rising. The NSW Government pledged a record $3.9 billion to the New South Wales Police Force in its 2018-19 budget, with a commitment to continuing sniffer dog operations and doubling roadside drug testing.

And while governments continue to take a hard line stance against drugs and spend big on policing and enforcement, those working in rehabilitation say there’s a major funding shortfall for much needed services for those suffering drug addiction. Many facilities are working with scant resources, particularly in rural areas, and yet there is mounting research to suggest that programmes are highly successful in helping users get their lives on track, and reducing re-offending.

Greens MP David Shoebridge has been a staunch and long-time campaigner against the use of sniffer dogs at events including music festivals. He says the double counting has raised questions about policy decisions, and that its ‘remarkable’ there isn’t a better cross-checking system within the NSW Police Force to pick up on the over-reporting.

“Year on year police have demanded additional resources to meet perceived crime levels with much of this perception based on data produced by BOCSAR. The war on drugs has never been winnable, and what we see from these recent numbers is that the NSW Police is having an even smaller impact on drug supply than many thought,” he remarked.

Better auditing

While BOCSAR has admitted its error, the fiasco points to the need for better auditing and analysis to ensure statistics are accurate and that governments and other bodies are properly advised, so that funding can be allocated and policies developed accordingly.

In the meantime, it seems police may need to work a little harder to justify funding for the war against drugs.

Australia’s First Pill Testing Trial Hailed a Success

By Zeb Holmes and Ugur Nedim

Australia’s first pill testing trial has been hailed a resounding success, after analyses identified potentially lethal ingredients in the drugs of attendees and thereby allowed them to make informed decisions about whether to consume the substances

The trial at the Groovin the Moo festival in Canberra over the weekends tested a total of 85 substances, with many users surprised by what they were about to take.

Lethal ingredients

The trial identified the presence of two highly toxic chemicals, including the “absolutely lethal” N-Ethylpentylone (ephylone), which has been responsible for several deaths and mass overdoses around the world.

Emergency doctor David Caldicott explains that ephylone is a stimulant that can cause circulation problems, dangerous hallucinations and lethal heart palpitations.

The lethal substances were found inside clear capsules and disposed of immediately, potentially preventing another two deaths at Australian music festivals.

It was also revealed that half of the drugs tested were cut with substances not known or expected by users, from paint, to lactose, to toothpaste.

Opportunity to educate and provide support

The testing of substances was conducted in a standalone tent next to the festival’s medical centre. The operation was run by trained staff, including counsellors who took the opportunity to educate users and direct them, where appropriate, to support services.

Pill testing works by taking a minute sample from a pill, or a few granules from a capsule, which are then analysed by a doctor and chemist to determine the composition. The results are then given to the person who provided the substance, allowing them to decide whether to take some or all of it, or to dispose of it in the bin provided.

The service required users to sign a waiver releasing operators, workers and the state from liability in the event of an overdose from the use of the substances tested.

Dr Caldicott reported that five festival-goers discarded their pills upon being given the results of testing, with “a quarter to a third” advising that they would not be consuming the substances.

Ambulance commander Toby Keen said that the number of people treated for intoxication was similar to previous years, but reported that none of the people treated had a wristband indicating their participation in the pill-testing trial.

Government opposition

ACT Liberal legal spokesperson, Jeremy Hanson, says he continues to oppose pill testing on the basis that it sends a message that drugs are safe, and potentially exposes others to legal liability in the event of an overdose after testing.

The ACT Health website disagrees with the claims of sending the wrong message, pointing out that “[e]ven with laboratory-level testing, service staff never advise users that the drug they are taking is ‘safe’.” ACT Health Minister Meegan Fitzharris similarly emphasises that, “It’s really important to note that it doesn’t in any way condone illicit drug use. It is an important harm-minimisation measure.”

And legal commentators point out that the issue of legal liability is adequately dealt with by way of a waiver of liability.

Police cooperation

Meanwhile, police cooperated with the trial by not entering the pill testing stall at any time and not pursuing those who surrendered their substances for testing.

“While ACT Policing does not condone the use of illicit drugs, we do support harm minimisation strategies such as the decision to provide an accommodating environment to allow for pill testing,” a police spokesperson stated. “As a police force, we will continue to target and investigate the sale and supply of illicit drugs.”

There were only two arrests for drug charges at the festival, while an earlier stage of Groovin the Moo, held in the lower NSW Hunter Valley, saw 40 people arrested for drug possession.

NSW government inaction

According to 2016 government data, about 8.5 million people — or 43 per cent of Australians aged 14 and over — have used recreational drugs such as cannabis, methamphetamines, ecstasy and illegally obtained pharmaceuticals in their lifetime. So prohibition has clearly not stopped people from taking drugs.

NSW Greens MP Dr Mehreen Faruqi has called for pill-testing to be introduced across NSW, saying the Groovin the Moo trial proves the practice can save lives.

“The NSW Government needs to get out of the way to allow experts to get on with the job of keeping people safe,” she remarked. There was clear evidence that the government’s current “punitive, heavy-handed approach” to drug use isn’t working.

But unfortunately, both the NSW Labor and Liberal parties have so far refused to support pill testing in our state. It is hoped the recent success of Groovin in the Moo and the voices of health experts and other frontline workers will help change their minds.

A Summary of NSW Drug Laws

By Paul Gregoire and Ugur Nedim

In NSW, the use, possession, supply, cultivation and manufacture of prohibited drugs and/or plants are all crimes. The state offences and penalties relating to prohibited drugs are set out under the provisions of the Drugs Misuse and Trafficking Act (DMT Act) 1985.

Section 10 of the DMT Act outlaws drug possession. Section 12 makes it a crime to self-administer a prohibited substance. Division 1 of the Act also contains the offences of administering drugs to others, letting someone else administer drugs to you, and possessing equipment used to take drugs.

A maximum penalty of 2 years imprisonment and/or a fine of $2,200 applies to each these offences. They are ‘summary offences’, which means they are prosecuted in the Local Court rather than being heard in a higher court such as the District Court.

State regulations and controls regarding medicines, prescribed restricted substances, and poisons are primarily set out in the Poisons and Therapeutic Goods Act 1966. The Act provides that the distribution, prescription and administering of these substances is restricted to qualified and authorised persons.

Section 16 of the Act provides that an individual found in possession of anabolic steroids can face up to 2 years behind bars and/or a fine of $2,200, while those found in unlawful possession of a prescription drug or having forged a doctor’s script can be sent away for 6 months and fined $2,200.

International drug controls

“It’s impossible to understand the history of NSW drug laws without looking internationally,” explained Ben Mostyn, founding member of the UNSW Australian Drug Law Reform Initiative. “The United Nations and the USA have driven the war on drugs by developing the three UN conventions.”

The lawyer outlined that the 1961 Single Convention on Narcotic Drugs is the primary international drug control treaty. It lists a range of restricted drugs under its four schedules. “Of course, little scientific evidence existed in 1961 to support such a scheduling system,” Mr Mostyn added.

The 1971 Convention on Psychotropic Substances was designed to place controls on amphetamines, psychedelics and benzodiazepines. It also contains four schedules of controlled substances. The first schedule being the most restrictive and the fourth being the least.

According to Mostyn, the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, “which Australia is party to, effectively makes it compulsory for countries to criminalise drug possession.”

This convention also contains two tables that list precursor chemicals, reagents and solvents which are frequently used in the manufacture of illicit substances.

Domestic replication of the conventions

Although Australian states and territories are not signatories to these international conventions, and therefore are not bound by their terms, there is a tradition that these jurisdictions should act in accordance with the treaties entered into by the federal government.

And the international drug controls are reflected in the laws set out in the DMT Act.

As Mr Mostyn points out NSW uses “a scheduling system, with one primary schedule.” Schedule 1 of the DMT Act contains a list of around 200 outlawed drugs, prohibited plants, illicit drug precursors and reagents.

NSW supply charges

The NSW scheduling system provides a range of quantities for each illicit substance that has an effect on the charges laid against an individual found in their possession, as well as the penalties they face.

These quantities are broken down into a small quantity, a traffickable amount, an indictable quantity, a commercial amount and a large commercial supply. The applicable weights vary from drug to drug.

But the purity of an illicit substance doesn’t matter in the state regime. Section 4 of the DMT Act contains what’s known as the “admixture provision,” which outlines that a person found in the possession of an illegal drug will be charged with the entire weight of the substance, regardless of its purity.

So, if the total weight of a white powder is 1 kilogram, but analysis finds it’s only 25 percent heroin, a defendant will be charged in respect of 1 kilogram of heroin, not with the 250 grams of pure heroin it contains.

This is different to Commonwealth legislation against drug importation and exportation, where the actual weight of the prohibited substance within the admixture is the relevant quantity for the purposes of the law.

Section 29 of the DMT Act stipulates that if a person is found with more than a traffickable amount of a prohibited drug, they can be found guilty of supply, even if there’s no evidence they were intending to provide the substance to another person. This is known as deemed supply.

So, for example, traffickable amount of cocaine, heroin or amphetamines is 3 grams, while an indictable amount is 5 grams. A case involving the supply of an indictable quantity – whether deemed or an actual supply – must be heard in a District Court and a maximum penalty of 15 years in prison, and/or a fine of $22,000 applies.

A commercial quantity of cocaine is 250 grams. This amount can see an individual imprisoned for up to 20 years and receive a fine of up to $385,000. And a large commercial supply of the drug is 1 kilogram, which comes with a maximum sentence of life imprisonment and/or a fine of $550,000.

Cannabis cautioning

Back in April 2000, the NSW government introduced the cannabis cautioning scheme. This means NSW police officers have the discretion to issue a caution to adults found in possession of up to 15 grams of cannabis. And an individual can only be issued with two warnings before charges must be laid.

2011 NSW auditor general’s report revealed that over its first ten years, the cannabis cautioning scheme had diverted more than 39,000 minor cannabis offences from the courts. And the auditor general said that cautioned individuals are less likely to reoffend, than those who are charged.

Drug law reform is way overdue

However, like an increasing amount of NSW citizens, Mr Mostyn believes NSW drug laws are outdated and in need of an overhaul. “The entire way we view recreational drug use, problematic drug use, and addictive drug use needs to be reconsidered,” he told Sydney Criminal Lawyers®.

Mr Mostyn questioned the validity of laws that allow a person to be incarcerated for up to 2 years for cannabis or MDMA possession, which he finds is “entirely out of sync with community expectations and the scientific evidence on effective drug treatment.”

The 2016 National Drug Strategy Household Survey found that 74 percent of the Australian population do not support cannabis possession being a criminal offence.

The survey also reveals that 95 percent of the population don’t think people should be sent to prison for cannabis possession, while 87 percent of Australians don’t believe MDMA possession should be a gaolable offence.

And less than 25 percent of the population think people should be put away for being in possession of heroin or methamphetamine.

“The community is way ahead of the politicians on this issue,” Mr Mostyn concluded. It understands “that the criminal justice system is an expensive and ineffective way of dealing with the complicated social problem of drug use and addiction.”