Law Enforcement in the Illicit Drug Market

Transcription

1 June 24 - June Law Enforcement in the Illicit Drug Market This Issues Paper has been prepared for delegates attending the South Australian Drugs Summit, particularly for delegates who have been assigned to a working group on this topic. It is one of nine Issues Papers based on the nine working group themes to be discussed at the Summit. The purpose of the Issues Papers is to encourage thinking about drugs issues in the lead up to the Summit. The papers are not meant to be restrictive in any way. Delegates should feel free to raise any other relevant issues during their deliberations.

2 CONTENTS Page 1. INTRODUCTION 1 2. THE ROLE OF LAW ENFORCEMENT 1 3. ILLICIT DRUG USE WITHIN THE COMMUNITY 2 4. LINKAGES BETWEEN DRUG USE AND CRIME 3 5. DRUG RELATED ANTI-SOCIAL AND CRIMINAL BEHAVIOUR Amphetamine use and violence Drug use within the criminal element of the community Drug dealers 4 6. A BALANCED APPROACH TO TACKLING THE PROBLEM 5 7. DRUG USE LEADING TO DEPENDENCY RELATED CRIME 5 8. FORMAL OPPORTUNITIES FOR INTERVENTION AND DIVERSION AWAY FROM DRUG USE AND RELATED CRIME Police Diversion Initiative Drug Court Pilot Interventions in other jurisdictions 7 9. ILLICIT DRUG MARKET Changing the market place environment Law enforcement intervention at the street level Some other street level interventions in other places 8

3 CONTENTS (continued) Page 10. INTERVENTION IN THE BUSINESS OF MANUFACTURE AND SUPPLY OF ILLICIT DRUGS The availability of raw materials and the production of illicit drugs Money laundering and the connection to illicit drugs The wealth created by dealing in illicit drugs SUMMARY REFERENCES 15 This paper has been prepared by SA Police

4 1. INTRODUCTION In its broadest sense intervention in the illicit drug market can be equated to intervention into the cause and effect of road crashes. The impact on the community of road trauma is addressed by applying the interventions of engineering, education and enforcement. The same philosophy can be considered for the illicit drug market with a focus on education, enforcement and rehabilitation. Other papers for the Drugs Summit will identify law enforcement s role in a range of harm reduction interventions that are aimed at education and reducing the use and uptake of illicit drugs. This paper will focus on: The role of law enforcement in addressing illicit drug issues The actual environment in which illicit drug business is conducted The management of people found in possession of drugs for personal use Those within the community who make it their business to manufacture and deal in drugs. 2. THE ROLE OF LAW ENFORCEMENT The National Action Plan on Illicit Drugs 2001 to noted that historically law enforcement efforts aimed at drug control have been based on the following premises: They reduce the physical availability of illicit drugs They reduce drug use through the deterrent effects of a perceived high risk of being caught and punished They stem, suppress and disrupt the flow of trafficked drugs, sending a deterrent message to drug traffickers, making it difficult for them to engage in their business and to a lesser extent unpleasant for users on the street They reduce demand by driving up the price of drugs They reflect what is acceptable as a social norm and send a message to the community about it They punish those who offend against the law and against prevailing moral values in the community. However, by working in close partnership with health and other key stakeholders, police have also been able to successfully integrate their traditional policing responsibilities with a problem solving approach in health and education interventions. Important Question: Does law enforcement have a role in drug intervention beyond supply reduction? 1

5 3. ILLICIT DRUG USE WITHIN THE COMMUNITY Illicit drug use has adverse effects on individuals, their families and the broader community including the crime, fear of crime and injury. There is a number of recognisable drug related harms including drug overdose morbidity and mortality; harms associated with the increased use of amphetamine type stimulants such as increased aggression and psychosis; and drugs and driving. Australia appears to have a preference for injecting drugs such as heroin and amphetamines and injecting amphetamines is increasing. It is widely accepted that unsafe injecting practices bring with them the risk of serious communicable diseases and among illicit drug users, poly drug use is common which can often lead to overdose and illness. Illicit drug use among young people is associated with a range of adverse consequences including reduced educational attainment, reduced life opportunities, and delinquency. The most readily available data on illicit drug use is provided by the National Drug Strategy Household Surveys. According to the 2001 Household Survey, since 1998 there has been a decrease in tobacco, cannabis and heroin use but an increase in the consumption of amphetamines and ecstasy. The Survey also shows that more than one quarter (27.7%) of teenagers had used illicit drugs in the past 12 months. Other findings from the 2001 Household Survey indicate that: Almost two in every five Australians had used an illicit drug at some time in their lives Almost one in six had used illicit drugs in the previous 12 months 3.9% of people aged 14 years or over reported that they had driven a motor vehicle while under the influence of illicit drugs The age group with the highest proportion and number of injecting drug users was the age group The average age at which new users first tried illicit drugs remained stable at 19 years of age (AIHW, 2002). The Australian Illicit Drug Report notes that in the past 12 months the use of amphetamine-type stimulants has increased partially due to an Australiawide heroin shortage. In particular, the report notes that the use of amphetamines is probably the most concerning trend in the illicit drug environment. The 1998 National Drug Strategy Household Survey found that a majority of South Australians that were surveyed did not approve of the use of illicit drugs and supported increased penalties for the sale and supply of these drugs (AIHW, 2000). 2

6 4. LINKAGES BETWEEN DRUG USE AND CRIME Not all drug users commit crime, however the nexus between illicit drug use and crime is well established. The Drug Use Monitoring in Australia Project (DUMA) provides a reasonable and independent indicator of drug related crime based on information obtained from police detainees about their offending and drug use. The program currently operates in Queensland, New South Wales and Western Australia and has recently commenced in South Australia. Recent DUMA data from the other States identified that of the detainees who were interviewed: 35% of females and 30 % of males tested positive to amphetamines 57% of both males and females tested positive to cannabis 38% of females and 17% of males tested positive to opiates (Makkai, 2002). In the 2001 South Australian IDRS, 40% of injecting drug users (IDU) admitted to committing at least one crime in the previous month in SA. The report also found that: Drug dealing and property crime were the most common crimes that were reported by the sample of intravenous drug users (IDUs) 35% of all IDUs said that they had been arrested in the previous 12 months and of this number violent crime (e.g. domestic disputes, armed robbery, assault police) was the most common reason given for arrest (31.4%) followed by property crime (25.7%) e.g. break and enter, shoplifting and car theft, fraud (14.3%) dealing/ trafficking (8.6%) possession/use of a prohibited substance (5.7%) there was an increase in the number of people who had been arrested for violent crimes (based on the previous year s report) of those who had been arrested, 31.4% (i.e. 11% of the total IDU sample) had committed a violent crime compared with 9% in the 2000 survey (or 2.8% of the total IDU sample). Important Questions: Is it a reasonable presumption that reducing drug use equates to reducing crime? Are the current responses to the association between drug use and criminality appropriate? 3

7 5. DRUG RELATED ANTI SOCIAL AND CRIMINAL BEHAVIOUR 5.1 Amphetamine use and violence In a recent Australian study of amphetamine users, 44% reported an act of violence after use, 39% had been involved in violence previously, but 33% of violence first occurred after such use (Loxley and Bevan, 1998). If the apparent trend towards the preferred use of Amphetamine Type Substances (ATS) over heroin continues, and there continues to be a significant supply of the drug, it seems reasonable to assume that the face of drug related crime could change with an increased trend towards violence in the community. 5.2 Drug use within the criminal element of the community Drug use is a characteristic of the criminal sub culture and those people with criminal tendencies who use illicit drugs are treated differently to people with a dependency in that intervention in their criminal offending is seen as a priority over their non dependent drug use. Important Questions: Does the community response to their primary offending lie within the judicial system? How should their drug use be managed? 5.3 Drug dealers These are the people who recognise the commercial profitability of illicit drug manufacture and distribution and most likely do no use the product they deal in, recognising the personal harms that it can cause. Their offending is seen by the government as serious criminal behaviour and they are currently dealt with in the criminal courts. Important Questions: Does the community response to drug manufacturers and dealers lie within the judicial system? Is recognising the difference between those who have a dependency, those who use and offend, and those who deal in the product for profit considered important in determining the best response to the problem? 4

8 6. A BALANCED APPROACH TO TACKLING THE PROBLEM State and national drug frameworks set out broad principles, policies and priority areas for reducing crime and other harms caused by illicit drugs. These frameworks are based upon the notion of harm minimisation which reflects a balanced and integrated approach to improving social, economic and health outcomes for individuals and the community. Drug frameworks identify that harm minimisation reflects that balance and integration are achieved by three components: supply-reduction strategies designed to disrupt the production and supply of illicit drugs demand-reduction strategies designed to prevent the take-up of harmful drug use, including abstinence-oriented strategies to reduce drug use a range of targeted harm-reduction strategies designed to reduce drug-related harm for individuals and communities. Law enforcement intervention with illicit drugs is not restricted solely to a focus on supply reduction. Law enforcement also forms partnerships with other agencies and develops and delivers strategies aimed at reducing the demand for illicit drugs and drug related harms including other forms of crime. Important Questions: What outcomes does the community expect from law enforcement intervention in the illicit drug market? Do law enforcement interventions in the illicit drug market meet the expectations of the government? 7. DRUG USE LEADING TO DEPENDENCY RELATED CRIME Drug use leading to dependency, which can in turn lead to crime, can result in alienation from the wider community. Such drug use is usually related to heroin. The police are often the first point of contact for these people and are in a position to provide an intervention that creates opportunities for change. While police interventions provide opportunity, given the nature of drug dependency, it has been demonstrated that diversion (refer Section 8) does not necessarily equate to changes in behaviour at the first attempt. 5

9 Important Questions: If drug users commit crime to support their drug dependency, is changing that person s behaviour by eliminating the dependency the best option in the interests of both the person and the community? What are the opportunities for the person to re-enter the community through a mutual acceptance that dependency requires a joint resolve between the person and the community to address the problem? 8. FORMAL OPPORTUNITIES FOR INTERVENTION AND DIVERSION AWAY FROM DRUG USE AND RELATED CRIME 8.1 Police Drug Diversion Initiative The Police Drug Diversion initiative commenced in September At the time of apprehension the police can divert the person to an assessment followed by participation in one or more treatment sessions. The aim of the initiative is to provide people with timely access to assessment and treatment and thereby direct them away from engaging in harmful and illegal behaviours. The intended outcomes of the initiative are to: Provide people with the opportunity of early incentives to address their drug use problem, in many cases, before incurring a criminal record Increase the number of illicit drug users diverted into drug assessment and treatment Bring about a reduction in the number of people appearing before the courts for use or possession of small quantities of illicit drugs Reduce drug-related crime and harm within the community by addressing the underlying drug dependence problems of drug offenders. While the process of diverting these people from the judicial system to treatment is not new, the expanded number of assessment and treatment services is, and the diversion process is simpler for police and prosecuting authorities. 8.2 Drug Court Pilot The Drug Court targets persons aged 18 years and over with significant drug problems who have committed offences that would probably attract a term of imprisonment. The key aims of the program are to minimise or stop the use of illicit drugs by offenders, and to prevent or decrease any further drug-related offending. 6

10 8.3 Interventions in other jurisdictions Other jurisdictions use interventions such as the CREDIT scheme in Victoria and the MERIT scheme in New South Wales for diversion of those found using cannabis and other drugs. Important Question: What other opportunities could be explored either in addition to or as alternatives to existing programs in this State? 9. THE ILLICIT DRUG MARKET The drug market is like any other market place. There is a commodity, there are manufacturers, wholesalers, retailers and those who buy the product, the movement of money and drugs, and the market place in which business is conducted. Those in the business of dealing in drugs, apart from those people with a dependency, are in the business for profit and the accumulation of wealth. All of these components of the market provide opportunities for law enforcement intervention. In any business transaction, there must be a coming together of the seller or their agent, and the client. This is particularly so in lower level drug dealing given the need to transfer the product at the time of sale. 9.1 Changing the market place environment At this lower level of dealing, dealers recognise desirable market places because those places provide a relatively safe environment in which to do business, and in some cases, a ready market of existing or potential clients. Local illicit drug markets can include a variety of public places that are frequented by existing or potential clients. These areas are used for drug dealing because they provide a source of clients or a place where the risk of detection is reduced because of the actual physical environment, or both. Access to this market by sellers can be restricted making the availability of drugs more difficult for users towards preventing the take up or ongoing use of illicit drugs. Drug dealing in these places provides police with the opportunity to disrupt the drug market through actual intervention in the dealing, and also the opportunity to join with other agencies to alter the physical features of the environment and reduce its attractiveness for dealing. It is also a recognised business risk that every time the business moves from an established trading place, there is the potential to lose customers. In this process, 7

11 it is likely that opportunistic, often-experimental drug using clients will lose interest and no longer pursue the dealer or the product. Important Question: Is intervention towards changing the behaviour of users and making the physical environment a risky place for drug dealers to do business an appropriate intervention for police and other agencies such as local government? 9.2 Law enforcement intervention at the street level The South Australia Police Operation Mantle captures the philosophy of changing behaviour and also that of diversion of users away from drug use. A Mantle team exists in each of the six metropolitan police areas for the purpose of intervention in drug possession and dealing at this street level or bottom end of the drug market. People found in possession of small amounts of illegal drugs (but not cannabis) are issued with a diversion notice that refers them to assessment and treatment providers in the health sector as an alternative to going to Court. Another function of the Mantle teams is to form partnerships with other agencies and examine, and if necessary change, local environments where drug dealing takes place to reduce the potential for drug dealing to take place there. Important Question: Is this a reasonable approach by police and what other market place interventions can police and/or other agencies or groups undertake to reduce the availability of drugs at street level? 9.3 Some other street level interventions in other places In a number of Australasian jurisdictions, the offence of consorting with thieves and/or other persons of ill repute has long stood in legislation. It is a somewhat historic offence and now of limited practical application in that it is primarily drug dealers who are now seen as the undesirables in the community, but were not included in the original category of offenders. New Zealand has recently enacted amendments to consorting laws by including drug dealers, and in 1997 took a step further by introducing court ordered non association orders. In New South Wales the Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 has been assented to by Parliament and a commencement date is yet to be proclaimed. This Act will allow for court ordered non association or place restriction orders. 8

12 Important Questions: Should South Australia consider these or other measures in an attempt to disrupt the illicit drug market? Where does law enforcement intervention fit into drug market place disruption, what shape should it take and what issues peripheral to drug dealing should be included in those considerations? 10. INTERVENTION IN THE BUSINESS OF MANUFACTURE AND SUPPLY OF ILLICIT DRUGS In simplistic terms the goal of illicit drug dealers is wealth. They are business people in a highly competitive industry akin to the service and hospitality industries producing and marketing fast turnover disposable products to meet the demands of current consumers who constantly look to new innovations. Law enforcement agencies are in a unique position when it comes to addressing the supply of illicit drugs and disrupting the activities of dealers. They are the only organisation(s) with a substantial mandate to do so, and in the process are required to comply with legislation that governs the investigation of drug offences and associated crimes, and the way police generally investigate serious crime. Drug manufacturers and dealers do not recognise, nor are they confined by, State or national borders and can commit offences against a range of State and Commonwealth legislation extending across a number of jurisdictions in the conduct of business. Drugs such as heroin, cocaine and ecstasy are primarily imported into Australia for distribution, as are many of the chemicals used in the manufacture of synthetic drugs including amphetamines and other drugs related to it. The Australian Illicit Drug Report notes that in relation to the manufacture of methylamphetamines a number of jurisdictions have identified the increased involvement of independent manufacturers operating small-scale, often mobile and decentralised laboratories. These laboratories are often referred to as boxed labs and they present particular challenges and risks to law enforcement because they are used to avoid detection, they can collectively produce large amounts of methylamphetamine and often contain highly flammable and explosive materials (ABCI, 2002). If illicit drugs are not intercepted at the point of importation, the product is broken down and distributed in smaller lots with each subsequent distribution spreading the drug further into the community. It is at this stage of the distribution that street level policing and a focus on the diversion of users becomes instrumental, subsequently supported by health interventions. 9

13 Important Question: Should law enforcement take opportunities for intervention from the point of importation to reduce the amount of drugs getting to the streets? Drug importation, subsequent distribution and eventual laundering of the profits involves offences against State and Commonwealth legislation and intervention in the supply side of the market is reliant on a number of State and Commonwealth agencies. At the higher level of drug dealing, those people involved in the manufacture, importation and supply of illicit drugs are also usually involved in other forms of organised criminal behaviour. Hence there is a view within law enforcement that it is more effective to investigate the criminal rather than to focus on the commodity at this level. While law enforcement agencies and others who provide them with investigative support work together, they work within different models of legislation and this is seen by law enforcement as an impediment to effective intervention. The National Crime Authority has a view that the strategic importance of legislation which gives law enforcement appropriate investigative powers to counteract organised crime can not be over-emphasised. This view is supported by other law enforcement agencies. National organised crime syndicates cross Australia s external and internal borders in both the planning and execution of their criminal enterprises which requires State and Federal based law enforcement agencies to undertake joint investigations into organised crime that extends beyond single jurisdictions. Along with other counter-measures, organised crime groups are using the legislative restrictions on law enforcement agencies to impede effective law enforcement responses to their activities. Important Question: Are there benefits in reducing the availability of illicit drugs by reviewing legislation around State and Commonwealth based law enforcement investigation into organised crime within and across jurisdictions? 10.1 The availability of raw materials and the production of illicit drugs While the production of illicit drugs in South Australia has essentially been limited to cannabis and amphetamine and amphetamine analogues, fantasy is a recent arrival on the drug scene and can be produced through a chemical process. The other illicit drugs such as heroin and cocaine are regarded as imports. 10

14 Cannabis: The trend towards the hydroponic cultivation of cannabis, the amount of the drug available within the community and the proliferation of hydroponic shops in South Australia has been recently well publicised in the media. Hydroponic cultivation provides the opportunity to produce 3 to 4 cannabis crops per year and according to police, there is a history in South Australia of a significant illegal trade in cannabis that has been cultivated hydroponically within the limits identified in legislation as an expiable offence. The limit on plant numbers linked to expiation of the offence has in relatively recent times been reduced from ten to three to one. Police in the eastern states have expressed concerns over the amount of South Australian cannabis being exported to those States. Police claim that South Australia has a significant number of hydroponic shops compared with other jurisdictions, there are linkages between organised crime groups, cannabis producers and a significant number of hydroponics shops and that a proportion of the hydroponic retail industry is supported by illegal cannabis cultivation. Price variations between hydroponic and outdoor cannabis indicate a consumer preference for hydroponic cannabis and this is linked to a belief that hydroponic cannabis is more potent (higher THC levels) than the other. Important Questions: Should some form of intervention in the hydroponic industry be considered to reduce the availability of hydroponic equipment for cannabis production and increase the grower s risk of detection. If so, what are some of the options? Should research be conducted on the variations in THC content between hydroponic and outdoor cannabis with a view to educating the community once the outcomes are known? Amphetamines and fantasy ATS and fantasy are commonly referred to as designer or party drugs. The term designer comes from a premise that they are designed to meet the needs of the consumer. What is apparent is that they are marketed by the manufacturers and distributors, giving them names such as ecstasy and fantasy, and embossing tablets with trendy logos to increase their appeal. Recorded drug overdoses on these products identify that those who use these drugs are not confined to the young or impressionable people in the community. 11

15 Fantasy is the latest example of manufacturers exploiting the market place. The illicit manufacture of amphetamine type substances (ATS) involves the use of chemical products and laboratory equipment that also have a legitimate use in some industries. To restrict the production of ATS the government enacted Regulations under the Controlled Substance Act (Poisons) to regulate and monitor the sale of those essential products, namely precursor chemicals, solvents and reagents. The production of fantasy involves a range of chemicals that are not necessarily contained in the current restrictions and historically legislative controls over chemicals used in chemical drug manufacture have been introduced some time after the drug hits the market place. Clandestine laboratories in which these drugs are made are not of a commercial standard and laboratory chemists or cooks as they are known are in the main, unqualified to manufacture the products. Important Questions: Should this legislative intervention be reviewed as to its effectiveness in the restriction of amphetamine and fantasy production, and should this review consider ways to keep legislation abreast of designer drug production? Should education regarding designer drugs include information on manufacturing processes? 10.2 Money laundering and its connection to illicit drugs As in any organised criminal activity, illegal profits need to be laundered and drug money made clean. National and international observations on money laundering generally observe that it is a threat to legitimate economies, provides opportunities to legitimise tainted property and give criminals the opportunity to perpetuate and expand their illegal activities. Agencies expressing these views include the Financial Action Task Force on Money Laundering (FATF) in which Australia is represented, the United Nations General Assembly and the National Crime Authority. Hence in addressing the supply of illegal drugs governments consider these related activities as part and parcel of legislation enabling law enforcement intervention by reducing the amount of operating capital available to criminals. Within Australia, only South Australia and New South Wales require absolute proof that the accused knew that the money being laundered is linked to the crime. Other jurisdictions both within Australia and overseas have a broader definition. 12

16 There is no recorded conviction under existing South Australian money laundering legislation, and on 13th November 2001 the South Australian Legislative Council debated the offence of money laundering and supported a move to lower the level of knowledge required to prove the offence. Important Question: Given that there are direct linkages between money that finances drug distribution within the community, and the process of money laundering, should South Australian money laundering legislation be amended to make it more difficult to conduct that form of business here? 10.3 The wealth created by dealing in illicit drugs Royal Commissioners as far back as the 1970 s and 80 s recognised that the goal of organised crime is money... money generates power... it provides the motive for the engagement in such crime. Australia ratified the UN Vienna Convention in 1988 and the European Money Laundering Convention in These two treaties require Australia to adopt such measures as may be necessary to enable the confiscation of proceeds of crime. In 1999 the Australian Law Reform Commission concluded that conviction based forfeiture had failed to achieve its objectives, had fallen well short of depriving wrongdoers of their ill gotten gains and did not offer the prospect of meeting reasonable public expectations regarding the recovery of proceeds from unlawful activity from persons who would otherwise be unjustly enriched thereby. An express policy aim as remote as the early 1980 s was to produce relatively uniform, or at least consistent, legislation throughout Australia in relation to the confiscation of proceed of crime. Most States of Australia and the Commonwealth government have identified that a model of civil based forfeiture of assets gained through criminal activity is preferable to legislation that requires conviction of a substantial offence before assets can be seized. South Australian asset confiscation legislation is conviction based and there is still some inconsistency across States in the confiscation of assets from criminals. 13

17 Important Questions: Does the accumulation of assets increase the ability and potential for ongoing and/or expanded drug dealing? Does the inconsistency of confiscation legislation provide safe havens for criminal networks in those States with less threatening laws, and bring to those States the potential for an increased presence of organised crime and related offending? Should South Australian asset forfeiture legislation be reviewed? Do drug dealers see South Australia as a safe place to do business? Does the South Australian legislative and law enforcement environment support the notion that South Australia should not be a safe place for drug dealers to carry on their business? 11. SUMMARY The illicit drug market is a business environment involving the supply and demand of an illegal commodity. Law enforcement sees its role in intervention extending beyond reducing supply to a range of interventions aimed at preventing and reducing drug use. This paper raises a number of issues about existing interventions and provides the opportunity to consider additional or alternative strategies in the context of community expectations. 14

18 12. REFERENCES Australian Bureau of Criminal Intelligence (2002). Australian Illicit Drug Report , ABCI, Canberra Australian Institute of Health and Welfare (2000) National Drug Strategy Household Survey, Detailed Findings, AIHW, Canberra Australian Institute of Health and Welfare (2002) National Drug Strategy Household Survey: First Results, AIHW, Drug Statistics Series No. 9, Canberra Longo, M., Humeniuk, R., Christie P. & Ali, R. (2002). South Australian Drug Trends 2001: Findings from the Illicit Drug Reporting System, NDARC Technical Report No. 130, National Drug and Alcohol Research Centre, Sydney Loxley, W. & Bevan, J. (1998). Revved Up: Psychostimulant Use and Reckless or Violent Behaviour Study, National Centre for Research into the Prevention of Drug Abuse, Perth Makkai, T. (2002). Drug Use Monitoring in Australia: 2001 annual report on drug use among police detainees, Australian Institute of Criminology, Canberra Siggins Miller Consultants and National Expert Advisory Committee on Illicit Drugs (2001). National Action Plan on Illicit Drugs, Commonwealth Department of Health and Aged Care, Canberra 15