Introduction

Our property is sacred to us, and while we have rights over it, it is essential that we use it responsibly. As such, using premises for drug supply or manufacture amounts to a serious crime. Drug premises offences in New South Wales are a grave matter, impacting individuals and communities alike. These offences, governed by the Drugs Misuse and Trafficking Act 1985 (NSW), encompass a range of activities related to the unlawful supply, manufacture, or commercial cultivation of prohibited drugs. Understanding these offences is crucial for those facing charges and for the broader public seeking to navigate the legal landscape.

This guide provides a comprehensive overview of drug premises offences in NSW, detailing key legislation, police powers, evidentiary requirements, and available defences. It is designed to offer practical insights and clarity on the legal implications and consequences of such offences, helping readers make informed decisions and seek appropriate legal advice when needed.

Understanding Drug Premises Offences NSW

Definition of Drug Premises

Under the Drugs Misuse and Trafficking Act 1985 (NSW), drug premises are defined as any:

• structure
• building
• vehicle
• vessel
• place

used for the unlawful supply or manufacture of prohibited drugs. This definition also covers locations used for the commercial cultivation of prohibited plants by enhanced indoor methods.

Prohibited drugs—listed in Schedule 1 of the Act—include:

• heroin
• cocaine
• ecstasy

Notably, cannabis leaf, oil and resin are excluded from this definition when considering certain offences.

Types of Offences Related to Drug Premises

These offences involve the use of premises for illegal drug-related activities, such as the supply, manufacture or commercial cultivation of prohibited drugs. Under the Drugs Misuse and Trafficking Act 1985 (NSW), there are three primary offences:

1. Allowing Premises to be Used as Drug Premises (Section 36Y)
   It is an offence for the owner or occupier to knowingly allow premises to be used for drug activities. Penalties vary depending on whether it is a first or subsequent offence.
2. Being on Drug Premises (Section 36X)
   It is illegal to be on premises used for drug activities without a lawful excuse, and the penalty increases for subsequent offences.
3. Organising or Conducting Drug Premises (Section 36Z)
   Organising or conducting drug premises—including acting as a lookout or assisting in such activities—is a serious offence. Penalties are particularly severe if a child is exposed to drug activities.

These offences are enforced to combat illegal drug activities and protect public safety. If you are charged with any of these offences, seeking legal advice is essential to navigate the legal process effectively.

Key Legislation & Specific Offences

Offence of Allowing Use of Premises

Under section 36Y of the Drugs Misuse and Trafficking Act 1985 (NSW), it is an offence for an owner or occupier of premises to knowingly allow them to be used for the unlawful supply or manufacture of prohibited drugs. This offence carries significant penalties, which escalate if a child is exposed to prohibited drugs or related activities.

Specifically, the penalties are as follows:

• First offence: a maximum of 12 months imprisonment and/or a fine of $5,500.
• Subsequent offence: a maximum of 5 years imprisonment and/or a fine of $55,000.

Moreover, if a child is exposed to prohibited drugs or related activities on the premises, the penalties increase:

• First offence: a maximum of 14 months imprisonment and/or a fine of $6,600.
• Subsequent offence: a maximum of 6 years imprisonment and/or a fine of $66,000.

However, it is a defence if the court is satisfied that the child’s health or safety was not endangered.

Offence of Organising Drug Premises

Section 36Z of the Drugs Misuse and Trafficking Act 1985 (NSW) makes it an offence to organise or conduct drug premises. Similar to section 36Y, this offence carries substantial penalties that increase where a child is exposed to prohibited drugs or related activities.

Specifically, the penalties are as follows:

• First offence: a maximum of 12 months imprisonment and/or a fine of $5,500.
• Subsequent offence: a maximum of 5 years imprisonment and/or a fine of $55,000.

Moreover, if a child is exposed to prohibited drugs or related activities on the premises, the penalties increase:

• First offence: a maximum of 14 months imprisonment and/or a fine of $6,600.
• Subsequent offence: a maximum of 6 years imprisonment and/or a fine of $66,000.

Again, it is a defence if the court is satisfied that the child’s health or safety was not endangered.

Elements & Evidence Required in Drug Premises Cases

Types of Evidence Considered

To secure a conviction in drug premises cases, the court may consider various forms of evidence to determine if premises qualify as drug premises. These include:

• Obstruction of Police Entry: If police were hindered or delayed in entering the premises, it may indicate an attempt to conceal illegal activities.
• Construction Features: Modifications like reinforced doors, blacked-out windows or unusual ventilation systems can suggest drug-related use.
• Presence of Lookouts: Individuals acting as lookouts to alert others of police approach may indicate illegal activities.
• Drug Paraphernalia: Items such as syringes, pipes or manufacturing equipment found on the premises can support the case.
• Unexplained Large Sums of Money: Significant amounts of cash without a legitimate source may imply drug-related transactions.
• Affected Individuals: People appearing under the influence of drugs on the premises can serve as evidence.

Proving the Offence Beyond Reasonable Doubt

The prosecution must demonstrate beyond reasonable doubt that the premises were knowingly used for drug supply or manufacture, showing that the owner or occupier was aware of the illegal activities.

Factors that influence the prosecution’s case include:

• Direct evidence, such as drug finds or witness testimonies, which strengthens the case.
• Absence of direct evidence or a plausible excuse for the premises’ use, which weakens the prosecution’s argument.

Ultimately, the burden of proof lies entirely with the prosecution to establish guilt beyond reasonable doubt.

Police Powers & Investigative Procedures in Drug Premises Cases

Search Warrants and Execution Procedures

Police in New South Wales have the authority to issue and execute search warrants for premises suspected of being used for drug activities. These warrants are obtained under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).

Once a warrant is issued, police can:

• Enter the premises
• Break open doors or windows
• Conduct a thorough search of the property
• Search any person found on the premises
• Seize items suspected to be connected to drug offences, such as prohibited drugs, firearms, or large sums of money

Additional Powers & Measures by Police

In addition to search warrants, police have other investigative powers to combat drug premises offences. These include:

• Seizing items: Police can seize firearms, drugs, or other items suspected to be linked to unlawful activities.
• Requiring personal details: Occupants of the premises may be required to provide their full name and address.
• Conducting thorough searches: This includes searching individuals on the premises and examining any documents or records that may be connected to drug activities.

These powers are designed to effectively investigate and disrupt drug-related activities, ensuring public safety and enforcing the law.

Defences & Mitigating Factors in Drug Premises Offences

Common Legal Defences

Those accused of drug premises offences may have several legal defences available to them. When effectively presented, these defences can significantly impact the outcome of a case. Common legal defences include:

• Lack of Knowledge
  If the owner or occupier can prove they were unaware the premises were being used for drug activities, this may serve as a valid defence. For example, a landlord might avoid liability if a tenant is supplying drugs without their knowledge.
• Duress or Necessity
  If the accused demonstrates they were forced to allow drug activities on the premises due to threats or coercion, this defence may apply. Similarly, actions taken to prevent a greater harm can also qualify as a necessity defence.
• Lawful Excuse
  Under section 36X (being on drug premises), a lawful excuse can be raised. For instance, being on the premises for a legitimate purpose—such as visiting a friend or family member—may negate criminal liability.

Mitigating Circumstances Involving Child Exposure

If a child is exposed to drug-related activities on the premises, penalties generally increase. However, the defence can argue that the child’s health or safety was not endangered when:

• The child was not exposed to prohibited drugs or to the equipment used to administer them.
• The drugs or equipment present did not pose a danger to the child’s health or safety.
• The accused did not know a child had access to the premises.

These defences and mitigating factors highlight the complexities involved in drug premises offences. If you or someone you know is facing such charges, contact Daoud Legal, a trusted criminal law firm in Sydney, for expert guidance and representation.

Conclusion

Drug premises offences in New South Wales are complex and carry significant legal consequences. This guide has covered the definitions, key legislation, police powers, evidentiary requirements, and available defences related to these offences. Understanding these elements is crucial for anyone facing charges or seeking to navigate the legal landscape.

If you or someone you know is facing charges related to drug premises offences, it is essential to seek expert legal advice. Contact Daoud Legal, a trusted criminal law firm in Sydney, for specialised guidance and representation. Their expertise can help you navigate the complexities of your case and work towards the best possible outcome.

Frequently Asked Questions