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Drug Premises

Allowing Use of Premises as a Drug Premises

Allowing a premises to be used as a drug premises is an offence under section 36Y of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for a first offence is 12 months imprisonment and a fine of $5,500. These matters are heard before magistrate in the Local Court. However, if it is a second or subsequent offence, the maximum penalty is 5 years imprisonment and a fine of $55,000. These matters will be heard by a judge in the District Court.

The offence is committed if an owner or occupier of any premises allows it to be used as a drug premises.

“Premises” includes any structure, building, aircraft, vehicle, vessel or place (whether built upon or not).

“Drug premises” is defined to mean any premises that are used for either:

• The unlawful supply or manufacture of prohibited drugs;

• The unlawful commercial cultivation of prohibited plants by enhanced indoor means.

You may have a defence if the court is satisfied that you did not know or suspect, and could not reasonably be expected to have known or suspected, that the premises were being used as a drug premises.

Under the Drug Misuse and Trafficking Act, it is also an offence to:

• Enter of be on drug premises, unless you can prove you have a lawful excuse to be at the property: Section 36X

• Organise or help organise drug premises, including being a lookout or door guard, unless you can prove that you did not know that the property was being used as a drug premises: Section 36Z

For both of these charges, the maximum penalty for a first offence is 12 months imprisonment and a fine of $5,500. However, if it is a second or subsequent offence, the maximum penalty is 5 years imprisonment and a fine of $55,000

A list of prohibited drugs is contained in Schedule 1 of the Drug Misuse and Trafficking Act 1985. However, for this charge a “prohibited drug” does not include cannabis leaf, cannabis oil or cannabis resin.

What the prosecution must prove

To prove this charge, it is not necessary for the prosecution to establish that a person had a prohibited drug or plant in his or her possession or that a prohibited drug or plant was found on any premises involved in the offence.

In determining whether premises were being used for the unlawful supply or manufacture of any prohibited drug the court may have regard to the following:

• Evidence that a police officer was wilfully prevented from, or obstructed or delayed in, entering the premises;

• Evidence of the external or internal construction of the premises;

• 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 the premises, or in the possession of a person on the premises, a syringe, or other device used in the supply, manufacture or use of prohibited drugs;

• Evidence that there was found on the premises, or in the possession of a person on the premises, a firearm or prohibited weapon which is unlawful;

• Evidence that there was found on the premises any documents or records that appear to have been kept or used in connection with the unlawful supply or manufacture of prohibited drugs;

• Evidence that there was found on the premises a large amount of money that is not accounted for by the owner or occupier of the premises;

• Evidence that there was found on the premises persons who appeared to be affected by drugs.

In determining whether premises were being used for the commercial cultivation by enhanced indoor means of a prohibited plant (which includes cannabis) the court may have regard to the following:

• Evidence that a police officer was wilfully prevented from, or obstructed or delayed in, entering the premises;

• Evidence of the external or internal construction of the premises;

• 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 the premises equipment such as certain sorts of lights and growing chambers;

• Evidence that there was found on the premises, or in the possession of a person on the premises, documents concerned with hydroponic or cannabis cultivation;

• Evidence that there was found on the premises, or in the possession of a person on the premises, cannabis seeds, cannabis leaf or cannabis plants;

• Evidence that there was found on the premises, or in the possession of a person on the premises, chemicals or nutrients typically used in enhanced indoor cultivation of cannabis plants;

• Evidence regarding electricity consumption;

• Evidence of an unauthorised connection to, or bypass of, the electricity supply to the premises;

• Evidence that there was found on the premises boarded up windows or condensation on the windows;

• Evidence that there was found on the premises air vents and fan systems in unusual places or unusual numbers;

• Evidence that generators were continuously running on the premises;

• Evidence that security devices have been installed on the premises;

• Evidence that draft excluders have been fitted to any external doors on the premises;

• Evidence that there was found on the premises any documents or 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 the premises a large amount of money that is not accounted for by the owner or occupier of the premises;

• Evidence that there was found on the premises persons who appeared to be affected by a prohibited drug manufactured from the prohibited plant concerned.

Will I receive a criminal record, and could I go to jail?

Offences related to drug supply are regarded as serious crimes by the courts. Furthermore the seriousness of the offence is shown in that a second offence may not be dealt with by a magistrate in the Local Court but must be heard in the District Court.

Prior to sentence the judge or magistrate will consider a number of factors including the facts of the offences, whether the offender entered a plea of guilty (in which case he or she is entitled to a discount on sentence), whether the offender has prior convictions, whether the offender is remorseful as well as the personal circumstances of the offender such as whether they are employed or have any medical issue.

Other offences regarding ‘drug premises’

Under the Drug Misuse and Trafficking Act, it is also an offence to:

• Enter of be on drug premises, unless you can prove you have a lawful excuse to be at the property: Section 36X

• Organise or help organise drug premises, including being a lookout or door guard, unless you can prove that you did not know that the property was being used as a drug premises: Section 36Z

For both of these charges, the maximum penalty for a first offence is 12 months imprisonment and a fine of $5,500. However, if it is a second or subsequent offence, the maximum penalty is 5 years imprisonment and a fine of $55,000.