Offences Involving Drug Premises (NSW)
In New South Wales, there are a number of criminal offences relating to drug premises. These offences can attract fines and terms of imprisonment and may be dealt with in the Local Court or District Court. This article examines the law surrounding drug premises in New South Wales.
What are drug premises?
Drug premises are defined in the act as any premises that are used for the unlawful supply or manufacture of prohibited drugs. ‘Premises’ includes any structure, building, vehicle, vessel, aircraft or place.
A list of prohibited drugs can be found in Schedule 1 of the Drugs Misuse and Trafficking Act.
Offences involving drug premises are set out in the Drugs Misuse and Trafficking Act 1985.
NSW police have specific powers to issue and execute search warrants in relation to properties they suspect are being used in connection with drug manufacture or supply and those powers are contained in the Police Powers (Drug Premises) Act 2001.
Allowing premises to be used as drug premises
Section 36Y of the Drug Misuse and Trafficking Act provides that it is an offence for the owner or occupier of premises to knowingly allow them to be used for the supply or manufacture of drugs.
A first offence under this section carries a maximum penalty of a fine of 50 penalty units or 12 months imprisonment or both. A second or subsequent offence carries a maximum of a fine of 500 penalty units or imprisonment for five years or both.
If a person who commits an offence under this section knows that a child has access to the premises and is therefore exposed to a prohibited drug or plant, a drug supply process or any equipment capable of being used to administer a drug, the maximum penalty that applies is:
- For a first offence, 60 penalty units or imprisonment for 14 months, or both;
- For a second or subsequent offence, 600 penalty units or imprisonment for six years, or both.
However, it is a defence if the child’s health or safety was not endangered.
Organising drug premises
Under section 36Z, it is an offence to organise or conduct, or assist in organising or conduct drug premises.
The maximum penalty that attaches to this offence is:
- For a first offence, 50 penalty units or 12 months imprisonment, or both;
- For a second or subsequent offence, a fine of 500 penalty units or five years imprisonment, or both.
The penalties are increased if the accused knew that a child has access to the premises and was being exposed to the behaviour.
A police officer with the rank of sergeant or above may issue a search warrant if they have reasonable grounds to believe premises are being used as drug premises. In order to execute such a search warrant, police may pass over land to enter premises and break open doors, windows or partitions.
Police searching premises under these powers may:
- search any person on the premises;
- arrest any person on the premises;
- seize firearms or other things they believe are connected with offences;
- seize prohibited drugs, money, syringes or other things used in connection with prohibited activity;
- require any person on the premises to provide their full name and address.
Evidence that premises are drug premises
In order for a person to be found guilty of an offence involving drug premises, the prosecution must prove beyond a reasonable doubt that the premises were being used as drug premises. In determining this, the following matters may be considered:
- evidence that police were obstructed, prevented or delayed from entering the premises;
- evidence of the construction of the premises;
- evidence of a person acting as a “lookout”;
- evidence that there were syringes or other devices used in the manufacture, supply or use of prohibited drugs at the premises;
- evidence that there were prohibited weapons found on the premises;
- evidence of documents or other records of the supply or manufacture of a prohibited drug;
- evidence that there was a large amount of money found at the premises that is not accounted for;
- evidence that there were persons at the premises who appeared to be affected by drugs.
First offences involving drug premises are summary offences and are finalised in the Local Court. Second or subsequent offences are indictable offences (due to the longer maximum penalty that applies) and are finalised in the District Court.
Offences that are to be finalised in the District Court must first go through the processes of charge certification and case conferencing. The matter will proceed through a number of court events (or “mentions” in the Local Court) before being transferred to the District Court to be finalised as a sentencing hearing or trial.
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