To print this article, all you need is to be registered or login on Mondaq.com.
Along with NSW laws against the unlawful use, possession and
supply of prohibited drugs and plants (including
heroin,
methamphetamine,
cocaine and
cannabis), there are also unique offences which apply to
illicit drug premises.
Here’s what landlords and other property owners need to
know.
What are drug
premises?
Drug premises offences are outlined under the Drug Misuse and
Trafficking Act 1985 (NSW). Section 36TA of the Act defines
‘drug premises’ as any premises that are used for:
- the unlawful supply or manufacture of prohibited drugs;
and/or - the unlawful commercial cultivation of prohibited plants by
enhanced indoor means.
‘Commercial cultivation’ refers to the cultivation of
prohibited plants:
- Over a commercial quantity (which for cannabis plants is 100
kilograms of dried leaf); or - Over a small quantity (which for cannabis plants is 30 grams of
dried cannabis leaf) where the plants or their products are
intended by any person for sale.
The offence of
entering, or being on, drug premises
Section 36X of the Act outlines the offence of entering, or
being on, drug premise. This offence carries a maximum penalty
of:
- A fine of $5,500 or imprisonment for 12 months (or both) for a
first offence; or - A fine of $55,000 or imprisonment for 5 years (or both) for a
second or subsequent offence.
A defence exists under this section if a person satisfies the
court that he or she was on, or was entering or leaving, the drug
premises for a lawful purpose or with a lawful excuse.
The offence of
allowing use of premises as drug premises
Section 36Y(1) of the Act outlines an offence if a person, who
is an owner or occupier of any premises, knowingly allows the
premises to be used as drug premises. This offence carries a
maximum penalty of:
- A fine of $5,500 or imprisonment for 12 months (or both) for a
first offence; or - A fine of $55,000 or imprisonment for 5 years (or both) for a
second or subsequent offence.
Section 36Y(2) of the Act also outlines an offence if an owner
or occupier of a premises knowingly allows the premises to be used
as drug premises, and knows that a child has access to the premises
and, as a consequence of that access, the child is exposed to:
- a prohibited drug or prohibited plant, or
- a drug supply process, or
- any equipment capable of being used to administer a prohibited
drug.
This offence carries a maximum penalty of:
- A fine of $6,600 or imprisonment for 14 months (or both) for a
first offence; or - A fine of $66,000 or imprisonment for 6 years (or both) for a
second or subsequent offence.
It is a defence to this offence if the defendant establishes
that the exposure of the child to a prohibited drug or prohibited
plant, to a drug supply process, or to equipment capable of being
used to administer a prohibited drug, did not endanger the health
or safety of the child.
For the offences above, section 36ZB notes that a corporation
will be said to have ‘known’ premises were being used as
drug premises if there is evidence that an officer, employee or
agent of a corporation (while acting in his or her capacity as
such) had, at any particular time sufficient knowledge.
The offence of
organising drug premises
Section 36Z(1) of the Act outlines an offence if a person
organises or conducts, or assists in organising or conducting, any
drug premises. This offence carries a maximum penalty of:
- A fine of $5,500 or imprisonment for 12 months (or both) for a
first offence; or - A fine of $55,000 or imprisonment for 5 years (or both) for a
second or subsequent offence.
Section 36Z(2) of the Act also outlines an offence if a person
organises or conducts, or assists in organising or conducting, any
drug premises, and knows that a child has access to the premises
and, as a consequence of that access, the child is exposed to:
- a prohibited drug or prohibited plant, or
- a drug supply process, or
- any equipment capable of being used to administer a prohibited
drug.
This offence carries a maximum penalty of:
- A fine of $6,600 or imprisonment for 14 months (or both) for a
first offence; or - A fine of $66,000 or imprisonment for 6 years (or both) for a
second or subsequent offence.
Statutory
defences
The Crimes Act provides that a defendant is not guilty of a drug
premises offence it is established, on the balance of probabilities
(meaning more likely than not) that he or she did not know, and
could not reasonably be expected to have known, that the premises
to which the charge relates were being organised or conducted as
drug premises.
For offences involving children, an additional defence is that
the the exposure of the child to a prohibited drug or prohibited
plant, to a drug supply process, or to equipment capable of being
used to administer a prohibited drug, did not endanger the
child’s health or safety.
Evidence of
drug premises
Section 36W of the Act notes that a person cannot be found
guilty of an offence in relation to drug premises unless the
prosecution satisfies the court beyond a reasonable doubt that at
the time of the offence the premises were being used for:
- the unlawful supply or manufacture of any prohibited drug,
- the unlawful commercial cultivation by enhanced indoor means of
any prohibited plant.
Types of evidence that can indicate a premises is being used as
a drug premises include:
- evidence that a police officer authorised by law to enter the
premises was wilfully prevented from, or obstructed or delayed in,
entering or re-entering those premises or any part of those
premises; - evidence of the external or internal construction of the
premises, including any external or internal door of, or means of
access to, those premises that is found to be likely to have been
fitted with a bolt, bar, chain, or any means or device for the
purpose of preventing, delaying or obstructing the entry or
re-entry into those premises of such a police officer or any other
person, or for giving an alarm in case of such entry or
re-entry; - evidence of a person acting as a lookout to warn persons on the
premises of the approach of police officers or other persons; - evidence that there was found on those premises, or in the
possession of a person on those premises, any syringe or other
means or device used in the supply, manufacture or use of a
prohibited drug; - evidence that there was found on the premises, or in the
possession of a person on the premises, a firearm or prohibited
weapon the possession of which is unlawful; - evidence that there was found on those premises any documents
or other records, including any computer records, that appear to
have been kept or used in connection with the unlawful supply or
manufacture of a prohibited drug; - evidence that there was found on the premises any large amount
of money that is not accounted for by the owner or occupier of the
premises; - evidence that there were found on those premises persons who
appeared to be affected by a prohibited drug; - evidence that there was found on those premises equipment such
as electric lights of 250 watts or higher, fluorescent lights that
combine the red and blue part of the light spectrum, light units
comprising high intensity discharge lamps, ballasts, lamp mounts
and reflectors (also called ballast boxes), or growing chambers
with spray arm manifolds, hydro-controls and digital timers; - evidence that there was found on those premises, or in the
possession of a person on the premises, documents or literature
concerned with hydroponic or other enhanced indoor cultivation
methods or with cannabis cultivation or both; - evidence that there was found on those premises, or in the
possession of a person on the premises, cannabis seeds, cut
cannabis leaf, cannabis plants or plant clones, - evidence that there was found on those premises, or in the
possession of a person on the premises, minerals, chemicals or
nutrients, or their packaging, typically used in enhanced indoor
cultivation of cannabis plants; - evidence that there was abnormally high or low electricity
consumption for those premises in relation to other premises of
that type not used for such cultivation; - evidence of an apparently unauthorised connection to, or bypass
of, the electricity supply to those premises; - evidence that there was found on those premises blacked out or
boarded up windows or condensation on windows; - evidence that there was found on those premises air vents, fan
systems or exhaust fans in unusual places or in unusual
numbers; - evidence that generators were continuously running on those
premises; - evidence that security devices (such as security cameras) have
been installed on those premises; - evidence that draft excluders have been fitted to any external
doors or those premises; - evidence that there was found on those premises any documents
or other records, including any computer records, that appear to
have been kept or used in connection with the unlawful cultivation
by enhanced indoor means of a prohibited plant; evidence that there
was found on those premises any large amount of money that is not
accounted for by the owner or occupier of those premises; - evidence that there were found on those premises persons who
appeared to be affected by a prohibited drug manufactured from the
prohibited plant concerned.
General legal
defences
In addition to the statutory defences, which are those that
apply to drug premises offences only, a number of general legal
defences may also apply, depending on the circumstances of the
case.
These defences include duress, necessity and self-defence.
In the event a person is able to raise evidence of a general
legal defence, the onus then shifts to the prosecution who will be
required to prove beyond a reasonable doubt that the defence does
not apply.
A person is entitled to an acquittal (a not guilty verdict) if
the prosecution is unable to do this.
Going to court
for a drug-related offence?
If you have been charged with a
drug offence, call Sydney Criminal Lawyers anytime on 9261 8881
to arrange a free first conference during which one of our
experienced criminal defence lawyers will advise you of your
options and the best way forward, and fight for the optimal
outcome.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.