Misuse of Drugs Act 1975, s 7(2)

The maximum penalty for possession or use of a Class B drug – like speed (amphetamine), hash (cannabis resin), hash oil (cannabis oil), Ecstasy (MDMA), or pseudoephedrine (used to make P) – is three months’ jail or a maximum fine of $500, or both. (This penalty is the same as for cannabis and other Class C drugs.)

However, if it’s only your first drug offence, you’ll usually just get a fine for possession or use of Class B drugs.

You probably won’t qualify for “diversion” if you’re charged with Class B possession or use (this could be an option for Class C: see above, “Possessing or using cannabis or other Class C drugs”). However, you may still be able to get a discharge without conviction, see the chapter “The criminal courts”, under “Sentencing”.

Misuse of Drugs Act 1975, s 6(2), (6), Schedule 5

The maximum penalty for dealing in speed, hash or other Class B drugs is 14 years’ jail.

If you’ve got more than a certain amount of the particular drug in your possession, the law assumes you’re a dealer, and it’s up to you to prove that you’re not a dealer.

These are the threshold amounts for some of the main Class B drugs:

• amphetamine (speed) – 5 grams, or 100 flakes, tablets or capsules
• ecstasy (MDMA) – 5 grams, or 100 flakes, tablets or capsules
• hash (cannabis resin) – 5 grams, or 100 cigarettes containing it
• hash oil (cannabis oil) – 5 grams, or 100 cigarettes containing it
• pseudoephedrine (used in making P) – 10 grams.

The courts have given these guidelines for sentencing for Class B dealing:

Case: [1999] 3 NZLR 159 (CA)

• Likelihood of jail – Only in special cases will you get less than jail or home detention. But a “suspended” jail sentence may be justified if there’s no commercial element and the quantities are small (here you’re released but if you offend again within the next 12 months you have to come back to court again to be sentenced both for the original offence and the new offence). And in special cases there might be a sentence aimed at breaking addiction by courses of treatment.
• Starting points – The starting points for sentences (that is, before the judge takes into account any aggravating or mitigating factors to do with you and your situation, such as a guilty plea or previous convictions) will be:
  • up to five years’ jail for smaller commercial operations
  • between five and eight years for substantial commercial manufacture or importing with a sophisticated and organised operation, but where the amounts involved aren’t massive and it’s not over a prolonged time
  • between eight and 14 years for the biggest commercial operations.
• Your particular role – Those starting points can be modified when the judge takes account of your particular level of guilt (“culpability”) if the operation involves a number of different people. The judge will look at how much you are the “prime mover” or “mastermind”, or whether you played only a minor role. The courts have noted that the “prime mover” could play one of a number of roles – the importer/manufacturer, or the distributor, or someone who directs the operation remotely from the sidelines.
• Deterrence – When the judge is taking into account different factors for sentencing, your personal situation is less important than the need to deter others. So for example addicts who deal drugs usually won’t get lighter sentences than people motivated only by greed.

Misuse of Drugs Act 1975, s 7(2)

The maximum penalty for possession of a Class A drug – like heroin, LSD, cocaine or P (methamphetamine) – is six months’ jail or a $1,000 fine, or both.

However, if it’s only your first drug offence, you’ll usually just get a fine for possession or use of Class A drugs.

You probably won’t qualify for “diversion” if you’re charged with Class A possession or use (this could be an option for Class C, see “Possessing or using cannabis or other Class C drugs” earlier in the chapter. However, you may still be able to get a discharge without conviction, see the chapter “The criminal courts”, under “Sentencing”.

Misuse of Drugs Act 1975, s 6(2), (4), (6), Schedule 5

If you’re convicted of dealing in heroin, LSD, P or other Class A drugs, the judge will jail you unless there’s a specific reason to give you a lesser sentence, like supervision for example. Reasons might include that you’re young (under 20), or that you have a mental illness, or that your offending was at the very low end of the scale, such as casual supply to friends with no commercial element to it.

The maximum penalty for Class A dealing is life imprisonment. Jail terms in particular cases have ranged from just a few months for low-level offending, all the way up to 15 to 17 years’ jail for large-scale commercial operations.

Parole Act 2002, ss 17, 20, 84, 86

Note: In general, a person sentenced to life in prison is eligible for release on parole after serving 10 years, while a person sentenced to any jail term of more than two years is eligible for parole after serving a third of their sentence. Parole doesn’t apply to sentences of two years or less. Usually in those cases you’re simply released after serving half of your sentence.

Case: [2019] NZCA 507

The courts have given these specific guidelines for starting-point sentences for methamphetamine dealing (P):

• low-level supply (less than five grams) – community service to four years’ jail
• commercial amounts (5 to 250 grams) – two to nine years’ jail
• large commercial amounts (250 to 500 grams) – six to 12 years’ jail
• very large commercial amounts (500 grams to two kilograms) – eight years to 16 years’ jail
• commercial amounts larger than two kilograms – 10 years to life imprisonment

  Note: The “starting point” sentence means what the judge initially decides based simply on how bad the offending was, before giving any “uplifts” (increases) in your sentence for factors to do with you and your situation that make things worse (for example, previous offending) or any “discounts” (reductions) for factors that justify a lighter sentence (for example, a guilty plea). See “How criminal sentencing works” at the start of this chapter.

If you’ve got more than a certain amount of the particular drug in your possession, the law assumes you’re a dealer, and it’s up to you to prove that you’re not a dealer. These are the threshold amounts for some of the main Class A drugs:

• P (methamphetamine) – 5 grams
• LSD (lysergide) – 2.5 milligrams, or 25 flakes, tablets or capsules
• cocaine – half a gram
• heroin – half a gram.

  Note: “Dealing” in Class A or B drugs includes not just selling but also simply giving the drugs to others. This means that you can be convicted as a Class A dealer even if, for example, you’ve only bought several tabs of LSD (acid) to give to a small group of friends. In cases like that, however, the very low level of the offending will be reflected in the specific sentence you’re given, which might be as little as a fine, or even a discharge without conviction in some cases.