Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill

Before we continue, I want to advise members that the amendment set out on Supplementary Order Paper 164 in the name of Dr Duncan Webb to clause 4, to replace “8 years” with “1 year”, is out of order as being contrary to the principles and objects of the bill as agreed at the second reading, and therefore this amendment will not be debated.

Thank you, Madam Chair. I think going through in clauses is somewhat irrelevant because this whole entire bill is about clause 4, obviously, and in the original bill it’s about changing the maximum penalty for suppliers and for manufacturers from two years, and what Simeon Brown is wanting to do is move it through to eight years. The reason for that—and it’s understood: the intent of why Simeon Brown wants to do that—is because of a couple of reasons, but we’ll get into the technicalities in a second.

If you’re looking at comparing psychoactive drugs—and, in particular, the synthetic cannabis, which is the genesis of this bill and the reasoning behind what this bill is about and where it came from—and what is currently in the Misuse of Drugs Act and what we currently classify as hazardous drugs for very good reasons, there really is no comparison. I think one interesting point to note on the maximum prison sentences is that during the speeches in this House on the Psychoactive Substances Bill there was very little, if any at all, discussion or debate on the maximum penalties for supplying, manufacturing, and peddling these kinds of drugs. And I think it’s also important to note that this really isn’t about the drugs themselves. I know that might be contrary to logic, but it’s not actually about the drugs themselves, because the Psychoactive Substances Act is actually about the licensing of a product. And when something becomes illegal, it’s because it’s not legally licenced and gone through the loopholes.

What we’re dealing with and why it’s such a complex answer is because it’s not easily identifiable what those drugs are, and when a manufacturer comes up with a drug, they can change it in a heartbeat and then reapply to go through the licencing process. So it’s not as easy as just willy-nilly putting something in and identifying it as a drug in the Misuse of Drugs Act like the rest of the illegal drugs are; it’s about the process, and the process that the people who supply this drug and manufacture it have found a way around.

I think that we’ve had enough discussion in this House in regards to the issues between the users—those who are addicted—and those who are manufacturing, supplying, and peddling this drug. I think that it’s a very, very important clarification or difference between identifying a different approach that we need to take, that we haven’t really been able to tackle over the years since we’ve had this problem, in regards to how we address the problem with the users and those addicted and those who are peddling and manufacturing this drug.

I’d like to highlight a couple of the most important examples of why New Zealand First is supporting this bill. But not only that; we believe that the original eight years as a maximum sentence for supplying and manufacturing and dealing this drug doesn’t go quite far enough. We need to increase that to 14 years, and that’s not just a willy-nilly number; that is a realisation that this drug is not equivalent to class C drugs, which is what the eight years is comparing it to. It is actually closer to a more serious level of drug and class of drug: class B.

When we’re talking about the maximum jail sentence, we need to understand—and we’ll hear it, I’m sure, from members on this side of the Chamber especially—that many of the problems arise from those who are addicted to the drug, and those who need to sell the drug to feed their own habit, and those who are in certain circumstances that can be judged by some as being sympathetic to their cause. The fact is that if you look at this bill in isolation, what it does—because it’s a very, very simple bill and a Supplementary Order Paper (SOP) that New Zealand First is putting in—is it gives the judge the tool to enforce a maximum sentence.

Now, everybody in this committee knows that very, very rarely does a judge dish out a maximum sentence, for any crime, really, but especially with crimes around drugs and involving drugs. So when they do, and if they do, we have to understand that this bill is not talking about or affecting those who are addicted—those who the judge and our system can see have issues that have perhaps led them to the situation that they’re in. The judges still have discretion. So when you look at that for what it is and its facts, the only time that this bill and the SOP that New Zealand First is putting forward for the maximum sentence will actually be enacted will be for the worst of the offenders—the worst of those people who care not about the number of people who die. They care not about the effects that this poison has on not only the individual but their families and society and the community as a whole. They don’t care about that. These drug dealers and these manufacturers only care about themselves, and they want more people to be addicted. They don’t care what kind of a poison they create. They don’t care about the side effects.

The judge has that discretion. If the judge decides that it is the worst-case scenario, that’s when the maximum sentence will be applied, at the discretion of the judge. I’d like to highlight what I mean. There are a couple of very recent news articles, and they identify the problem very clearly. This one was dated August of this year, and it states “Police arrest three men in ongoing synthetic cannabis investigation … Three men, including a patched Head Hunters gang member, have been arrested in West Auckland”. This is not talking about those who are addicted to the poison, to synthetic cannabis. They’re not talking about the users; they’re talking about those who don’t care: the gang members who are peddling this stuff.

Hawke’s Bay is another one. In September of this year: “Hawke’s Bay police losing the battle to synthetic drug dealers … Area commander Inspector Dave Greig admits police are losing the battle against [these drugs and the dealers] as gangs ramp up recruitment and become more sophisticated. He says the Mongrel Mob is responsible for the supply of almost all of the synthetics.” I want to repeat that: “He says the Mongrel Mob is responsible for the supply of almost all of the synthetics.” Now, if anybody wants to stand up in this Chamber and say that this piece of legislation that directly covers what the title actually says, which is “(Increasing Penalty for Supply and Distribution)”—that’s what’s in the title. It doesn’t have “Users or Those Addicted”; it says “(Increasing Penalty for Supply and Distribution)”.

Inspector Greig says “addiction is a health, not a justice, problem and he is focused on bringing down the big-time dealers.”—agreed. New Zealand First has always had the stance that for those who are users and who are addicted, this is a health issue, but what also needs to be understood is the context in which the dealers and manufacturers and suppliers of this drug are working, what environment they’re working in within this legislation. When you compare the two years that it is now, versus the drugs that we’ve got in just the class C maximum, which is eight years, it’s little wonder why these drug dealers are manufacturing this and giving it to the people on the street.

I raise a point of order, Madam Chairperson. Just a point of clarification: you did rule a Supplementary Order Paper (SOP) out of order, and I think it’s numbered 164. Now, I didn’t see an SOP by me tabled with the number 164, so I’m just really seeking your clarification on that point, just so that we know what’s debatable and what’s not.

So, at this stage, there is no—I have been advised that it was tabled in the last session. We are just checking that. It is, obviously, not on the Table, so therefore there can be no debate if it doesn’t exist. So we will overlook that at this stage.

Thank you, Madam Chair. In that case then, I’d like to speak to my tabled amendment that was tabled on 31 October at 9.45. It’s an amendment which would replace clause 4 and do two things. It would replace “8 years” with “2 years”, but it would give—

💬 Marja Lubeck: Very good.

Absolutely right—it would be a much more reasonable sentence. But, actually, much, much more important than the length of the sentence is the direction that must be given to the court, and that is a direction to impose rehabilitative and reintegrative sentences, because what we don’t want to do is to send people to a training ground for criminal activity and simply teach them how to deal drugs better.

Now, what we know is that when young people, particularly, find their way into prison, the reoffending rate is extremely high—sometimes up to 70 percent. There are two key reasons for that. One is because there are no resources focused on rehabilitation, on teaching these people the skills so that they can re-enter the community. But, more importantly—and I think this is the greater gap—is the reintegration. The fact is that prison is an isolating place. It does the opposite of teaching people how to have meaningful social relationships, having a relationship in a workplace, having a relationship with whānau, and having an ordinary relationship with friends. So any court-imposed penalty should have a reintegrative element, and we know that if resources are put into reintegration, the costs of criminality fall because reoffending rates fall, and imprisonment costs fall, and what we see is that the whole cycle of criminality is improved.

Let’s not pretend—and I know Mr Darroch Ball gave an impassioned speech about the evil of these people, but the fact of the matter is that many of these offenders are themselves in the grips of addiction. They are themselves in a cycle of poverty, of misery, of addiction, and of mental health trauma, and what they need is those problems to be addressed.

Simply throwing them into a cell doesn’t address that, so my tabled amendment from the last session addresses that. It says that we should have rehabilitation as a focal point, and when I say “rehabilitation”, I would hope that the court would be very directive, that it’s giving those people the kinds of life skills that will make sure that they can become useful members of the community, because one of the difficulties we have is that people find themselves supplying synthetic cannabis for want of a meaningful alternative.

So we need to rehabilitate them so that when they come out, they know how to operate finances, they know how to find a job, and they have all of those skills that most of us take for granted and that most of us pass on to our children, but in some cases, it simply isn’t done. That reintegration is the fact that that next step of the corrections process is taking that member and slowly placing them back into a community setting and saying “Here is somewhere that you can belong. Here is someone who will support you. Here is a job.”—perhaps a supported job—“Here is building some work relationships.”—relationships of trust which, sadly, for some, are not very common in those communities they come from.

So what this amendment does is it says, “Look, we don’t need to put people away for eight years.”, and even if imprisonment is the answer, we need to have a humane prison environment. It’s something that this party has been looking at for some time, and something that we’ve seen in the new prison being built that will have a mental health facility attached.

So in this tabled amendment, what we see is a change of direction. Rather than Mr Brown’s sledgehammer, we see something entirely different. We see something where we accept the humanity in every person, and what we want to see happen is that out of that process comes not someone who feels punished and alienated, but someone who can move back into the community with a new sense of worth, with some healing done, and with new and better connections with family and community.

Now, just before I give the next call, I can advise Dr Duncan Webb that in relation to Supplementary Order Paper 164, he has given it to the clerks but not released it, I understand. I’m giving him an indication that it would be out of order—so it’s an indicative decision—because it would be contrary to the principles and objects of the bill, which, of course, is about increasing penalty, and the House accepted that at the second reading.

💬 Dr Duncan Webb: Thank you, Madam Chair.

CHAIRPERSON (Hon Anne Tolley): So I’m not going to argue it. It’s—

💬 Dr Duncan Webb: No, I’m—thank you for your direction.

CHAIRPERSON (Hon Anne Tolley): —been ruled—well, it hasn’t been ruled out. I’m giving you—because we haven’t got it on the Table. But that would be my ruling.

It’s an absolute—well, here we are, we’re debating a bill. Look, I guess there is a range of different questions and considerations that one could turn their mind to when we start to talk about the punitive implications of raising sentences without taking an overarching, holistic approach to sentencing and doing it in isolation through ad hoc bills, and in this instance, here we are with the Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill.

Section 70(3)(a) in clause 4 is amended to replace “2 years” with “8 years”, the intention of that being to get tough on the guys that are out there supplying some of the most vulnerable people within our communities. So I guess I want to start my remarks by saying that this isn’t an issue we take lightly. I want to acknowledge the harm that psychoactive substances are having within our communities, and, in particular, where you and I are both from, we know because we see it day in and day out, the harm that psychoactive substances are causing within our communities. So the issue for debate and discussion from this side of the House isn’t about the harm that is caused as a consequence of the psychoactive substances circulating within our communities, but the issue is the way in which we go about mitigating that harm.

So in my name this evening I’ve tabled Supplementary Order Paper (SOP) 162 that proposes: “[Replacing] clause 4 … with 4 Section 70 [to be] amended (Offences relating to psychoactive substances that is a not approved product) [and] In section 70(3), [to] replace paragraph (a) with: (a) in the case of an individual,—(i) to a term of imprisonment not exceeding 8 years; and (ii) when sentencing under subparagraph (i), where relevant, the court must take into account—(A) kanohi ki te kanohi (face to face reconciliation between the offender and any affected person):”.

As I alluded to prior, in communities like ours the victims and the perpetrators—

CHAIRPERSON (Hon Anne Tolley): I’m sorry. Can I just interrupt the member. Is she speaking to an SOP?

Number 162 that has been tabled and which I—

CHAIRPERSON (Hon Anne Tolley): Yes. No, no, you haven’t actually released it.

It’s on the Table, and I just took it off the Table.

CHAIRPERSON (Hon Anne Tolley): That’s right. You haven’t released it.

Well—it’s been tabled because the Clerk tabled it. And that’s—I’ve been waiting for it to be tabled, which is why I’m speaking to it, Madam Chair.

CHAIRPERSON (Hon Anne Tolley): Is it on the Table? It’s on the Table? It’s in order. Thank you.

Thank you, Madam Chair. So in communities like ours in the East Coast and in Te Tai Rāwhiti offenders and victims aren’t mutually exclusive—in fact, more often than not they are intimately known to each other. The proposal at subparagraph “(A) [is that] kanohi ki te kanohi (face to face reconciliation between the offender and any affected person):” is taken into consideration by the court in the sentencing process. At subparagraph (B), the proposal is at sentencing to take into consideration “whakamā (appreciation and shame in respect of [the] wrongdoing and its impact)” on the community.

Now, I’ve just been reading sentencing notes from the District Courts in our region and, look, there’s been a real array of approaches to the way that individuals, who have been charged with a criminal offence under this provision, have responded in terms of their own remorse and recognition of the harm that they are inflicting on the community.

So the underpinning thesis here is that where a person understands the nature of that harm, they take it upon themselves, they understand that whakamā not only to themselves but to their family and the community—that that is taken into consideration at that sentencing stage.

At subparagraph (C) “whakahoki mauri (rehabilition):”—whether that person has engaged in any process to rehabilitate themselves as a consequence. It could be (a) in respect to the direct offending or (b) in respect of the circumstances that led them to that point in their life where they were—again, as I said, I alluded to that I’d been reading—[Time expired]

Thank you, Madam Chair. Thank you for the opportunity to take a short call in response to some of the debate points which have been raised during this debate this afternoon on my bill in regards to increasing the penalties for supply and distribution of psychoactive substances.

Firstly, I’d like to just say that there are a number of Supplementary Order Papers coming through very late and I would like to address the ones that I can at this stage address. But, firstly, I’d like to acknowledge New Zealand First and their Supplementary Order Paper to increase the penalty to 14 years—a Supplementary Order Paper which National will be supporting. We see the harm that these drugs are causing in our communities and I really wonder why some people in this committee want to filibuster and slow this debate down so that this bill does not get passed—[Interruption]—so the bill doesn’t get passed. And I’d like to even address the committee and quote the Prime Minister, who said, “Supply is different for me and actually a health-based approach does say those who are supplying harmful drugs actually do need to be held to account.” We should be going after those who are, I think, preying on the vulnerable, because we do see that there are vulnerable people who are using synthetics.

There is a need in our community to address this issue. We’ve seen over 50 deaths from these drugs in the past year. We have seen the number of hospitalisations which are being caused. We see our hospital system, our St John Ambulance system overloaded and there is a need—there is a need—to address the supply of these drugs. And I have all the way through this debate acknowledged the need for us to also ensure that there is an addressing of help for those who are suffering from addiction to these drugs. Members will remember back in March I brought a petition to this House calling for a select committee inquiry into addiction to these drugs and looking at ways in which this Parliament could address that, and the Justice Committee decided—the Labour members decided—not to progress that element. I find it an absolute shame that the members on this side of the House can talk about this issue all day and all night and how there is a need to do something, but they had an opportunity to do something in select committee and they absolutely failed to. [Interruption]

CHAIRPERSON (Hon Anne Tolley): Just calm down. I don’t think that yelling is going to make any difference and the member has the right to be heard.

💬 Kiritapu Allan: We can dispute some issues that he’s raising, Madam Chair.

CHAIRPERSON (Hon Anne Tolley): And you interject at your own risk.

I would like to address a number of the Supplementary Order Papers that I do have in front of me. There are three in the name of Chlöe Swarbrick. The first one, Supplementary Order Paper 159 removes the criminal offence of possession. That is not in the purpose. The purpose of the bill here is increasing the penalty for supply; the penalty for possession is a separate matter. And while we do believe—and I echo the words again of Darroch Ball—that for those who are suffering from addiction to these drugs, we do need to be treating it as a health issue, there must also be the deterrent effect for smaller penalties for possession retained, and that is in line with other legislation. There is a wider debate going on around that issue and that is something which this Parliament, I’m sure, will be looking at, at some point, but that is not what this bill is doing. This bill is targeting suppliers of these drugs. That is what this bill is intending to do.

Supplementary Order Paper 160 intends to reduce to two years the term of imprisonment for anything except for manufacture and importation. There are separate penalties, and I think the member may be confused because sections 25 and 26 of the Psychoactive Substances Act do address illegal importation and manufacture of approved products and it’s about not having licences to import, not having licences to manufacture. Those are separate matters, whereas the definition of sale or supply in the legislation as it stands is an incredibly broad definition and includes all manner of disposition for valuable consideration. So in section 8 of the Act “sell includes every method of disposition for valuable consideration,” whether that’s “(a) bartering: (b) offering or attempting to sell or having in possession for sale, or exposing, sending, or delivering … or causing or allowing to be sold, offered, or exposed for sale:”. This is one of the very broadest definitions of “sell” and so this section already deals with that issue.

There’s Supplementary Order Paper 161 introducing mitigating factors for sentencing. The Supplementary Order Paper seems confused. It talks about penalties for mitigation of offending for importing without a licence. That is the offence in sections 25 and 26 dealing with approved products. Section 70 deals with unapproved products, and I think that’s a critical point which needs to be realised. Section 70 is about unapproved products. The rest of the Act is dealing with approved products.

There’s also Supplementary Order Paper 170 in the name of Duncan Webb, which seeks to put in place a mitigating factor. Again, the courts have the ability to take into account all of those mitigating factors when they’re making their decisions.

Just before I call the next member, just remember that this is the committee of the whole House. Every member has four opportunities to make a five-minute speech. There’s plenty of opportunity to debate. So let’s have a good debate and get on with it.

Madam Chair, thank you. I just wanted to touch on the point that was raised by the member in the chair just previously with regard to how those who are in possession of these substances are not going to be captured by this. The clause that we’re debating is clause 4, which amends section 70 to increase the penalty for “selling or supplying unapproved psychoactive substances.” However—

Having said that, I’m very sorry to interrupt the member, but the time has come for me to report progress.

House resumed.

Progress reported.

Report adopted.

The House adjourned at 9.57 p.m.