Controlled Substances (Commercial Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 September 2015.)

Mr ODENWALDER (Little Para) (10:52): I rise today to speak on behalf of the government in opposition to the Controlled Substances (Commercial Offences) Amendment Bill. I do not oppose the bill because it is a terrible idea, I oppose it because it is not necessary, upon proper consideration of the current provisions of the Controlled Substances Act (the existing act). The bill proposes amendments to the act to provide that it is an offence to carry on a business of trafficking or manufacturing a controlled drug or selling or manufacturing a controlled precursor or cultivating for sale or selling controlled plants. The bill replicates, essentially, section 5(1) of the Drugs Misuse Act 1986 (the Queensland act) that provides for the offence of carrying on the business of trafficking in a dangerous drug.

When the bill was introduced, there was no mention by the mover of section 33N of the Controlled Substances Act, which allows for the aggregation of drug offences. Section 33N provides the prosecution with a mechanism to charge and prosecute an individual with one single drug offence if they have committed a number of drug offences over a period of time. This provision is directed squarely towards those offenders who carry on a business of drug dealing.

Mr Speaker, those supporting this bill have also failed to have regard to the heavy penalty provisions which already exist in the Controlled Substances Act. There are serious consequences for those who deal in commercial quantities of controlled substances; for some quantities the maximum penalty is imprisonment for life, which is equivalent to the penalties for the most serious of crimes. If an accused person is appropriately charged by the prosecuting authorities as to the nature and number of offences pursuant to the act, a court is well equipped with the penalties provided for by the act to impose a sentence that adequately reflects the criminality of commercial dealing an accused has engaged in.

Mr Tarzia: What did the Supreme Court say?

Mr ODENWALDER: Well, interesting you should ask. The decision of the Court of Criminal Appeal in R v Faehrmann examined the sentences of two defendants who were sentenced to a number of cannabis offences against the background of a course of conduct of cannabis trading over a four and a half month period. It is a fundamental principle of sentencing law that a person can only be sentenced for the offences for which they have been convicted.

The background conduct of trading over a 4½ month period in Faehrmann was thus relevant upon sentence to such matters as questions of leniency and prospects of rehabilitation. However, it could not operate to impose a higher sentence than would otherwise be appropriate. As with any offence, uncharged conduct that is considered relevant upon sentence cannot increase a sentence. It rather operates to deny the leniency that might be forwarded to a defendant who commits an isolated offence.

When the Court of Criminal Appeal commented on the merits of adopting a provision in South Australia like that in Queensland, it was in the context of the court considering difficult topics such as parity of sentences, the use of uncharged acts upon sentence and the construction of sentences to account for the overall undercharging of defendants. So, it is not quite right to say that the court ruled that the current legislative regime is limited and prevents drug traffickers being sentenced to higher terms of imprisonment. It is plain upon any examination of the sentences imposed by the courts in this state for the commercial dealing of cannabis and other substances that the existing penalties adequately equip a sentencing judge to impose a sentence that reflects the level of criminality engaged in by a defendant.

When the bill was introduced, it was said that the law in this state did not consider commercial drug dealing as a continuing business. It was said that this bill would streamline the prosecution of those charged with commercial drug dealing and allow the DPP to prosecute alleged drug traffickers for the totality of their offending. The prosecution of commercial drug offences in South Australia commonly involves an accused who is participating in an ongoing business. The prosecution can charge an accused involved in an ongoing enterprise with a number of offences during the relevant period that will particularise the drug transactions alleged to have occurred.

The expansive definitions of trafficking, manufacturing and cultivating in the existing Controlled Substances Act contemplate any step that may be taken in the process of sale, manufacturing or cultivation of a controlled substance. The prosecution has the discretion to charge as many or as few offences as the evidence discloses to adequately reflect the accused's conduct and level of criminality. Those transactions will likely not have occurred out of the blue. There will be evidence that will be presented to the court to place the transaction in its proper context.

Introducing a provision like that of Queensland to charge a single offence as representative of the totality of the enterprise will not streamline or simplify the case that the prosecution must prove. Each transaction alleged to give rise to the offence of carrying on a business will still need to be presented to a court for the offence to be proved to the requisite standard. It will not streamline the prosecution of drug offenders who are engaged in a sophisticated drug trafficking business, which is most often a very lengthy and complex process that can involve evidence of surveillance, telephone intercepts, covert operations and undercover operatives, with a number of defendants, and evidence spanning a period of months or longer.

The introduction of this bill will not change or streamline the evidence that will be presented to a court by the prosecution for the purposes of a trial or indeed to inform the court of a proper basis for sentence. As I have already mentioned, the Controlled Substances Act presently provides in section 33N for the charging of a single offence to encompass an ongoing commercial business. Section 33N arose out of recommendations that were made in the 1998 report on serious drug offences by the Model Criminal Court Officers Committee, and the section commenced operation in December 2007.

Section 33N provides for aggregating transactions or offences so that if a person has committed offences in relation to different batches of controlled substances (being a controlled drug, controlled precursor or controlled plant), and the offences were committed on the same occasion, or within seven days of each other, or in the course of an organised commercial activity, the person may be charged with a single offence in respect of all the different batches of controlled substances.

This provision thus achieves the very purpose that this bill is directed towards. It does not create a separate offence, but rather it provides that a number of separate offences can be aggregated into one offence if they are proximate in time or occur as a result of an organised commercial business. This section is directed squarely towards an accused who is involved in the trade or business of drug dealing, rather than towards those who commit isolated incidents or transactions.

The present offence regime in the Controlled Substances Act as well as the maximum penalties available upon sentence are sufficient for a court to impose a sentence upon an accused who is convicted of a commercial drug enterprise that adequately reflects the scope of the accused's conduct. Where offenders engage in commercial drug offending, it is expected that the courts will impose heavy sentences that reflect a significant deterrent penalty. This bill does not increase the maximum penalties available under the Controlled Substances Act. Both the member for Morialta and the member for Morphett referred to the bill providing a maximum penalty of $500,000 or imprisonment for life, or both, for the new offence it creates. The member for Morphett referred to increasing and expanding the penalties and adding an extra deterrent for drug offenders.

The Controlled Substances Act already prescribes such a penalty for those who deal in large commercial quantities of controlled drugs or who commit aggravated offences involving commercial quantities of controlled drugs. Indeed, the penalty provisions of the Controlled Substances Act are more stringent than those provided in the Queensland Drugs Misuse Act on which this bill is modelled, where the maximum penalty is 25 years' imprisonment.

This bill will not enhance the current provisions for the prosecution and sentencing of commercial drug offenders that are available in the Controlled Substances Act, and for this reason I and the government oppose this bill.

Mr KNOLL (Schubert) (11:00): I rise to support this very worthwhile piece of legislation introduced by the member for Hartley. Over my time in this place, and in memory of the great Dr Bob Such, we here try to use this time to promote worthwhile causes and to help bring forward issues that are perhaps smaller in nature that do not necessarily fit into the time frame and the dealings of government legislation. However, we can use private members' time for private members' bills to fix smaller parts of the legislation—and this is something the member for Hartley has sought to do.

Obviously, it is a bill that seeks to group together different drug offences in order for courts to be able to prosecute people based on the history of drug offending, as opposed to each individual instance. I will soon get to why not only that is important but also why it is something that the government has otherwise been a great supporter of. First, I will start by talking more generally about drugs in our society, and I want to talk about an instance in my own life.

I am somebody who in all seriousness has never tried drugs, never inhaled or looked to inhale or anything of that nature. Having said that, I am somebody who has seen drugs around me, and I will tell the story of a friend I had in high school. He started off as a great friend in year 8. He was an occasional smoker of cannabis, but over the years of high school, from years 8, 9 and 10, he became an increasingly heavy user, to the point where he used it on a daily basis.

He was my best friend for quite a time, but increasingly he started to feel the negative side effects of continual cannabis use—becoming increasingly erratic, paranoid and irrational—and he also started to make plans that he would forget he had made. I could see his cognitive abilities dissipating to the point where he struggled to talk in concepts, where he struggled to remember things he had said or done in the days and weeks previously. Essentially, he became a haze of mild, gentle ambivalence. For a guy I had spent a lot of time with and knew extremely well, this was very sad for me to see.

The difference between the two of us could not have been more stark—he was quite happy in his use and I was extremely happy in my non-use. In a gentle way, I would try to suggest to him that what he was doing was not good for his health. I also tried to suggest to him that it was not good for his grades, which did suffer a severe deterioration. In the end, I felt that the only thing I could do to help wake him up was to stop talking to him. Essentially, I made the decision that not only was he not the kind of person I wanted in my life but also that if he valued our friendship he would take some steps to remedy his behaviour: unfortunately, he did not.

That was about 12 or 13 years ago and I have really only seen him once or twice since. I think he has been able to pull his life together and deal with the issue of consistent cannabis use. I used to see his parents on a semiregular basis and they would often lament his behaviour. Having seen it firsthand, I know what persistent cannabis use does to people. I applaud any attempts to help restrict the supply, restrict the sale and restrict the use of cannabis in our society.

For those who think it is a benign drug, something we can allow in recreational quantities in our society and it will cause no harm, I have had this very personal experience that leads me to see firsthand that this is not the case. Cannabis is not a drug that is safe to use, especially when people who use it have a predisposition towards being addicted to these types of substances.

If I talk a bit more generally about this Labor government over 13 years, one of the easiest shoeboxes Mike Rann as premier would pull out of the top drawer whenever life got a bit hard in government was the tough on crime angle. In this place, this Labor government continually tests legal principle in its pursuit of seeming to be ever more tough on crime. That mantra has been one of the few consistent things we know about this government—trying to find increasingly wider ways to abuse our legal system in pursuit of a decent media headline. That is why I find this quite surprising.

When a very simple measure, a measure the Supreme Court thinks worthy of attention, is brought to this house by the member for Hartley, the government opposes it. We are creating a new paradigm where the government is tough on crime, unless of course it is an idea the opposition proposes. So, we are tough on crime, but only if we get to own it. We are tough on crime, except when we cannot make political mileage out of it because otherwise what is the point.

It shows the crass nature of this government and the crass way it uses the legal system for its own political benefit, as opposed to necessarily the benefit of the people of South Australia. It is disappointing to hear the member for Little Para stand up and oppose what is otherwise a very worthwhile, very simple, piece of legislation. As the member for Newland has stated in this house before, it is the type of legislation that private members' time was designed to deal with—these smaller issues that otherwise do not get broader attention.

Here is the ultimate hypocrisy of this Labor government—the ultimate hypocrisy. It was only a couple of months ago that we in this place were debating a bill to change the way family protection works in South Australia. One of the main objectives of that bill was to group together instances of notification of child neglect to create a consistent history of child abuse and neglect when considering taking children away from their parents.

This concept that you cannot look at instances in isolation, that you need to group together to get a consistent history of people's patterns of behaviour in order to make judgements about them, is a concept this government introduced in child protection legislation only a couple of months ago. So, it is okay for it to have to happen when it comes to child protection, but it is obviously not okay when it comes to cannabis use or issues relating to drug use.

The idea of grouping together to be able to understand someone's history to determine a pattern of behaviour in order to make a judgement about them or, in the case of child protection, children under their care, is okay, but if we want to develop and understand a pattern of behaviour and history of behaviour in relation to cannabis use, that is not okay. I find that rank hypocrisy because, if the concept is good for one, surely it should be good for another. Surely, if that is a consistent concept that is worthy of attention, it should be worthy in this instance.

Again, it highlights the hypocrisy of this Labor government on these issues simply because they are not able to make the political mileage, simply because they want to score cheap political points by trying to stymie the good work of the member for Hartley in this place by bringing forward something that is common sense and commonplace. After 13 years, you would have to consider that most people who sit on the Supreme Court bench were appointed under this Labor government. I am not entirely sure, but I would say that the majority were appointed under this government.

Surely, when these recommendations are brought down they are worthy of consideration by this government but, unfortunately, that has not been the case. So, it is a disappointing day and disappointing that we cannot look past cheap political points, especially when we in opposition, when it comes to things like WorkCover and a whole host of other legislation, have been in lockstep with the government on things that are sensible. We only need to look at the Nuclear Fuel Cycle Royal Commission to understand how we as an opposition are being constructive in this debate, when it would be very easy for us to stand here and score political points. I know it is something that members of the Labor Party and the Labor government have expressed to me.

So it is disappointing that, in this instance, the government has not seen fit to work with us, to make a small but significant change to make sure that it is harder in the future for former friends, such as mine, to be able to kick the habit and to make it harder for them to fall into this deep, dark trap that is drug use in South Australia.

Ms DIGANCE (Elder) (11:10): I move:

That the debate be adjourned.

The house divided on the motion:

Ayes 23

Noes 18

Majority 5

Motion thus carried; debate adjourned.