Jared Savage: Why the landmark Court of Appeal decision is not 'soft on crime'

Customs and Police have stopped nearly 1500kg of methamphetamine this year alone. In 2003, the total was 3kg. Photo / Supplied

A newly released Court of Appeal judgment will change the way meth cases will be sentenced and dealers who can prove their addiction will be eligible for hefty discounts. Herald reporter Jared Savage says this move should not be interpreted as being 'soft on crime' and explains how the ruling will still allow those dealing in commercial amounts to be dealt with severely - while offering an alternative route to those struggling with drug dependence, or in over their heads with gangs.

The emails rolled in on cue, like clockwork.

"Joke sentencing", "Empty the Jails", "Free meth for everyone" were the tamer examples of reader feedback soon after the Herald published the Court of Appeal's landmark decision about meth cases.

Undoubtedly, their outrage triggered by the news that methamphetamine dealers will now be able to shave up to 30 per cent off their sentence if they can prove their own struggles with addiction were the cause of their crime.

That's one of the headlines from the 103-paragraph judgment and, read in isolation, the sceptics will cite Zhang v The Queen as proof New Zealand is "soft on crime".

• Special Report: Inside NZ's largest meth bust

• WATCH: Fighting the Demon documentary

• Rock solid evidence: 267kg of meth mixed in concrete

• The prison interview: Meth, the Mobster and his mum.

It's anything but.

Serious methamphetamine charges still carry a maximum of life imprisonment and the Zhang ruling does nothing to undermine Parliament's decision to upgrade meth to a Class A drug in 2003.

However, Zhang illustrates succinctly in one document how much the drug scene has changed in the years since.

As covered extensively by Herald reporting this year, including the feature-length Fighting the Demon documentary, New Zealand is experiencing another wave of the meth epidemic.

This year alone, nearly 1500kg has been seized by Police and Customs. In 2003, the grand total was 3kg.

Now, we use nearly that much every single day. According to analysis of wastewater testing, an estimated $1.4m worth is consumed every 24 hours.

There are some sophisticated, ruthless criminals making millions and millions of dollars who need to be targeted and held to account.

The Zhang ruling does not change that.

Judges will still be able to throw the book at anyone cooking massive amounts of meth, like Head Hunter Brownie Harding, or those involved in the more current trend of smuggling large shipments from Asia or Mexico.

And so they should.

But significantly, the Courts will now have more discretion in determining the sentence based not just on weight, but crucially the role of the offender in the criminal syndicate.

In 10 years of covering the rise of organised crime and methamphetamine, I've reported on some truly incredible work by law enforcement in New Zealand.

But I've become tired of press releases trumpeting long prison lags for individuals who are literally the bottom of the drug supply chain.

The scale of drug offending varies significantly.

New Zealanders consume $1.4m of meth every single day. Photo / Mike Scott

"At one end lies… the 'head of the snake', often beyond the jurisdiction of New Zealand authorities, masterminding manufacture or importation, and distribution," wrote Justice Stephen Kos, in the Court of Appeal decision.

"At the other end lies a solo mother in a provincial town, given free methamphetamine by a gang member to addict and in debt her, who is then forced herself to deal the drug to get by."

There are others in-between: Gang leaders, entrepreneurs will to work with them, couriers or mules who have no idea what's packed in their bags, addicts who are selling gear to get by.

Under the previous Fatu guideline decision, anyone caught with 500g or more of methamphetamine was lumped in together and facing a starting point of at least 10 years in prison.

The new guidelines issued in Zhang give judges greater discretion to make the right call.

But perhaps even more significant in Zhang, is the consideration of addiction as a mitigating factor if - and it's a big if - someone can prove their addiction was the cause of their drug dealing.

The Court of Appeal pointed to the evidence of international medical professionals which questioned whether longer prison sentences deter addicts from committing crimes.

There were a number of reasons for this.

"An offender's otherwise strong pro-social tendencies may be overwhelmed by dependence and addiction, even if they have ceased using methamphetamine. Secondly, offenders may be unwilling to seek treatment because of both social stigma and threat of punishment," wrote Justice Kos.

"Thirdly, there is some evidence that offenders use methamphetamine as a coping mechanism for childhood trauma and in response to developmental difficulties. They may be self-medicating for mental health reasons such as ADHD, anxiety or depression.

"And fourthly, the effect of methamphetamine addiction results in the prioritisation of the narcotic over needs such as food, shelter and personal relationships."

On the back of this, the Court of Appeal urged lawyers and judges to take advantage pointed out a little-used clause in the Sentencing Act "tailored" for drug dealers whose crimes have been caused by drug addiction.

Under Section 25 of the law, judges can adjourn a sentencing hearing so the offender can undertake a rehabilitation programme and this can be taken into account at sentencing.

"The clear intent was to encourage participation in rehabilitation programmes which if successfully completed could… mean a custodial sentence was likely to be avoided."

The Court of Appeal decision also leaves it open for low-level suppliers to escape a prison sentence entirely, which dovetails the Government's recent law change to give police more discretion.

Anyone caught in possession of small amounts of Class A drugs can only prosecuted if there is a clear public interest in doing so.

It's a health-based approach. But if we're no longer sending people to prison for low-level drug offences, they need to be sent somewhere else for help.

The waiting lists for counselling and rehab are jam packed.

The Government did announce in Budget 2019 more funding for specialist drug rehabilitation services, counselling and a pilot programme in Northland which is proving successful.

But those on the frontline say more is needed - and urgently.

Tuwharetoa Ki Kawerau Educational and Social Services Trust CEO Chris Marjoribanks. Photo / Mike Scott

When the police raided Kawerau in early 2018 in a high-profile raid and locked up more than 50 locals involved in dealing methamphetamine, the local iwi Tuwharetoa had 60 people turn up on their doorstep looking for help.

Chris Marjoribanks, who heads the iwi's charitable services, says it took another year of wrangling with the Bay of Plenty DHB to get funding approved for a fulltime counsellor in town.

Those who have never struggled with addiction - or deprivation - can underestimate the importance of having a trained counsellor in town, says Marjoribanks.

"People are quick to judge. Why don't they attend the appointment in Whakatane?" Marjoribanks told the Herald in the Fighting the Demon project, referring to the nearest addiction counsellor about a 30-minute drive away.

"Well, there's no public transport. For many of our people, they may have a car but it's not registered or warranted. That's a big fine.

"Or they might not have enough money. And this sounds ridiculous, to those who live organised lives, but sometimes attending a 3.30pm appointment in three weeks' time just falls out of their memory.

"The intent is there but you need resource to achieve the commitment."