February 2022

Inside job: the not-so-social fallout of supplying friends

In early 2017, Matt (not his real name) was ‘busted’ by a drug detection dog at a Perth train station with a ‘ball’ – 3.5 grams – of methylamphetamine.

At that time Matt had been using meth for three years and his addiction was quickly spiralling out of control.

“I needed at least half a gram a day just to keep everything on a level plane,” he says.

“It was bad, but I didn’t really realise how bad until after I got caught.”

For the previous six months Matt had been selling small amounts of ice to fund his habit. When he bought the ice he planned to sell 1.5 grams in small ‘point’ deals which would make him back his money and allow him to pay for two grams for himself.

While he knew it was illegal, he considered it one of the least harmful ways of supporting his own habit.

“I wasn’t out there robbing houses and ripping off innocent people. I wasn’t selling to school kids or trying to get people hooked who weren’t already using.

To me, I was just helping out a few mates and supporting my own habit.

Matt

“To me, I was just helping out a few mates and supporting my own habit.”

When Matt was caught with the ball of ice, legislative threshold laws meant he was charged with drug trafficking. He later faced a magistrate and received an 18-month prison sentence. Because of the nature of his charge, he was not eligible for any diversionary alternatives.

Little leeway

In all Australian states and territories, the level of drug charge somebody will face is determined by the quantity they are caught with or a legislative threshold.

These thresholds differ in every jurisdiction, and University of NSW’s Director of Drug Policy Alison Ritter says that laws which lump users and very small-time dealers into the same category as big suppliers who sell drugs for profit often have disastrous consequences.

“Legislative thresholds determine the offence that somebody is charged with,” Alison says. “You’re charged with either use or supply, and the problem with social and minimally commercial supply that it sits somewhere between those things,” she says.

“Using threshold quantities – that is, the weight of the drug – is a really blunt tool. With most other offending behaviour, a lot more is taken into consideration by the police when determining the appropriate charge, and the courts in terms of determining the appropriate sentence.

Professor Alison Ritter

What we’re left with in this case is this really crude measure of quantity. There is a huge difference between social supply and dealing for profit.

Prof. Alison Ritter

“What we’re left with in this case is this really crude measure of quantity. There is a huge difference between social supply and dealing for profit. Social supply should be dealt with under a different regime but threshold quantities don’t recognise that.”

While many other factors are taken into consideration by a magistrate when imposing their sentence, such as an individual’s motivations or circumstances, Alison says this is too discretionary and does not supply judicial officers with a useful guide.

“In terms of sentencing, sure, there are other determining factors, but how those things are considered will absolutely vary by magistrate and/or judge. And the extent to which they are considered varies depending on the individual magistrate or judge,” she says.

“So it’s really, really blunt, and it doesn’t entirely account for individual circumstance. It doesn’t allow blurry cases like social supply. It doesn’t take into account things like purity of the drug and so on.”

Presumption of guilt

More disturbingly, she says, it also reverses the onus of proof – a natural principle of the justice system.

“Probably the most egregious aspect of this is the onus of proof is reversed. What that means is that if you are caught with, say, 5g of MDMA or five ecstasy tablets, and you are deemed to be supplying, you have to prove in court that you aren’t supplying, which kind of reverses all the principles of our justice system,” she says.

“In other countries, other evidence is also used to determine supply: the presence of scales, the presence of plastic bags, presence of lots of cash et cetera. None of that needs to be considered for the charge of supply [in Australia]. It’s just weigh the drug; this is how much it weighs.

“What we’re left with is this really crude measure of quantity.”

Call for a revamp

A recent report by the Australian Institute of Criminology has called for a reconfiguration of the legislative threshold system, with some judicial officers interviewed in the report describing the system as “out of touch”, “stupid”, “arbitrary”, “misleading” and “meaningless”.

The report also notes inconsistent sentences across jurisdictions and individual cases, and many judges say this is because there is no useful system to guide their decisions in cases of minimally commercial supply.

In some cases studied for the report, sentences for minimally commercial supply vary from a fine or good behaviour bond to six years’ imprisonment.

Report author and Queensland University of Technology’s School of Justice Director Melissa Bull says the system needs to be reconfigured to provide judicial officers with a more useful decision-making guide.

“These are two different types of supply that aren’t in Australia clearly acknowledged in our legislation,” she says.

“We know from analysis that there are lots of other types of supply but there isn’t a differentiation in the legislation.”

Social supply is the smallest form of drug dealing, says Melissa, with many who are doing it unaware that they are actually dealing or could be classified as drug traffickers until they find themselves before the courts.

“Social supply is really about supplying to friends and acquaintances, for no profit, maybe to cover the cost of the drug. People who do this often talk about it as ‘sharing’, ‘helping others out’,” she says.

“People who are socially supplying may not even be aware that it’s perhaps considered trafficking until they end up in front of the court.”

Minimally commercial supply is a slightly more serious version of drug dealing, says Melissa, and is often undertaken by people, like Matt, who are dependent on drugs and who are selling small quantities of drugs to pay for their own use.

“You might see this more in the case of dependent drug users,” she says. “They have to have it and they don’t want to do other types of crime so they will sell a quantity of drugs to cover the cost of their own drug use.

Melissa Bull

[People who are dependent on drugs] have to have it and they don’t want to do other types of crime so they will sell a quantity of drugs to cover the cost of their own drug use.

Melissa Bull

“People who are engaged in minimally commercial supply are more likely to be drug dependent and perhaps have lives that are a little bit more chaotic, so that’s how they’re getting by, if you like.

“Both these groups often supply to networks of people who are known to them.”

Melissa says legislative thresholds mean that social and minimally commercial suppliers are also often dealt with in a higher court with more severe outcomes likely, and not eligible for diversionary alternatives like the drug court program.

“The thing is when you’re talking about supply, this isn’t a summary offence that’s going through a Magistrate’s Court. Anything in the supply category is considered a more serious offence,” she says.

“They end up in much higher courts, with more severe outcomes. It depends which jurisdiction you’re in, but it can result in a maximum sentence of 10 years or more.”

Legislative threshold laws also in some cases prevent people being eligible for diversionary alternatives and hinder their prospects of rehabilitation, says Melissa.

“If you’re talking about social supply, diversionary options do exist, but not at all levels. And not everybody who crosses the threshold is eligible for them,” she says.

“Not discounting the harm that drugs can do in people’s lives, but many of the judicial officers we interviewed [for this report] suggested that the threshold system was a bit of a problem. We’ve seen a review of it recently, which is good, but these types of cases shouldn’t be coming before the court. And perhaps there should be some diversionary program that could shift these people out of those higher courts and away from those high penalties, because it’s incredibly costly. It’s time-consuming. It’s costly to the justice system. It has a huge impact on the lives of the people and their family and their supporters.”

Matt says that after his prison sentence he felt tarnished. While he credits his term of imprisonment with giving him a kind of wake-up call, he says he wishes there had been an alternative available to him.

“I don’t think prisons are designed to help people overcome their problems. They’re designed to punish people,” he says.

“It’s a school of crime, and everybody in there is a victim. You have to adopt this kind of hard, egotistic mentality just to get by. While it might serve you in there, it takes a long time to try to break that back down outside.

“I had mates who went through the drug court program and I feel like that would have been a far better alternative for anybody who actually genuinely wanted to turn their life around.

“Going to prison has made things that bit harder for me. Sure, I’ve learned my lesson, but I wish there had been an easier way to do it.”

 

– Tom de Souza