Review of the Police Powers (Drug Premises) Act 2001 - NSW ...

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6.7. Organising or conducting, or assisting in organising or conducting, drug premises Under section 14 of the Drug Premises Act, it is an offence to organise or conduct, or assist in organising or conducting, any drug premises. Section 14 also outlines the types of activities that may constitute an offence: For the purposes of this section, a person assists in organising or conducting drug premises if, for example, the person acts as a lookout, door attendant or guard in respect of any premises that are organised or conducted as drug premises. 523 Unlike the offence of being found on, entering or leaving drug premises discussed above, which suggests a passive state of being on drug premises, to organise, conduct or assist in organising or conducting drug premises, suggests a more active involvement in operation of the drug premises. The statutory defence that is available to a person who is charged with this offence is as follows: (2) A person is not guilty of an offence under this section of organising or conducting drug premises or of assisting in organising or conducting drug premises if the person satisfies the court that he or she did not know, and could not reasonably be expected to have known, that the premises were being organised or conducted as drug premises. 524 In relation to this offence, the onus of proof is also reversed. Again the standard to which the defence must prove that the person did not know or could not reasonably be expected to have known that premises were drug premises, is on the balance of probabilities. Sixty-six charges for this offence were laid across the state, and three of these charges were laid for a second offence under this provision. One case study relating to this offence is set out below. Case study 14. Organise, conduct or assist in conducting a car as a drug premises Undercover police contacted a suspected drug dealer by phone and arranged to purchase one hundred dollars worth of heroin. Initially, the dealer arrived with a $200 deal, and left to get the smaller quantity requested. When the dealer returned in his car shortly after with the $100 deal, there was a woman in the passenger seat. The dealer drove over to the wrong side of the road, and pulled alongside the driver’s window of the car which had the undercover operatives inside. The dealer spat the foil out of his mouth, and the undercover operative passed the money to him through the car window. When the drugs were handed over, the woman in the passenger seat leaned forward and glanced over. The car moved off, and about a minute later, was pulled over by police. The dealer and the woman were told by police to get out of the car, arrested, and taken back to the police station. The woman was charged with organising, conducting or assisting drug premises, and the man was charged with allow premises to be used as drug premises, as well as supply. 525 At court, the woman said that she had bumped into the driver of the car when she was having lunch with some friends. She said she had not seen him for a while, and suggested that they have coffee. She said that she had asked him if he would then give her a lift to the cemetery to visit a grave afterwards. She got in the car, and after driving past several streets, he drove over to the wrong side of the road, and pulled up beside a car. She said she “glanced over the window, but … didn’t take much note to what was happening”. She said that she was then asked to hold $100. The woman’s lawyer asked her questions about the events that unfolded including questions about her belief about the money: Q: When you got in the car, did you know that [driver’s name] was going to supply drugs A: No. Q: When he handed you the $100 did you put that in your wallet to assist him in his drug supplying activities A: No. 526 523 Police Powers (Drug Premises) Act, s. 14(2). 524 Police Powers (Drug Premises) Act, s 14(3). 525 He was ultimately sentenced to twenty months imprisonment for the supply offence, and twelve months imprisonment for the drug premises offence. He appealed. The sentence for the drug premises offence was not varied, but his non-parole period was reduced from fifteen to twelve months. Campbelltown District Court, Criminal Jurisdiction, R v. Ton Nguyen, Appeal, 7 December 2001. 526 Liverpool Local Court, Police v Hanh Thingoc Nguyen, 19 June 2002, p.18. 96 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
The magistrate said that he had a real and deep suspicion that the defendant knew that a drug deal was taking place, but that: … it’s a big leap based on two physical motions and nothing else to being satisfied beyond reasonable doubt she knows that it’s a drug deal that’s going on, given the accepted fact between both prosecution and defence that she has only been in the car a minute or two, and I can’t get away from the genuine possibility that the events did occur as Ms Nguyen says with no knowledge or possibility that the events did occur with no knowledge or complicity on her part and in terms of the supply and assist drug premises she has to get the benefit of that possibility. 527 6.7.1. Demographic information about people charged with organising, conducting or assisting drug premises The table below, shows the ages of people charged with a first offence of organising, conducting or assisting drug premises. Figure 12: Age of people charged with organising or assisting drug premises – 1st offence Not knkown Age 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 53 56 57 58 64 65 69 70 0 1 2 3 4 5 Number of persons charged Source: COPS database 527 Ibid, p.35. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 97
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Review of the Police Powers (Drug P
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Contents Preface ..................
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Chapter 11. Drug move-on powers in
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Acknowledgements This report was re
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Part One. Background. Chapter 1. In
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Drug offences, unlike for example,
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elieve is in a public place with th
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Chapter 2. Methodology In this chap
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2.3.5. Health data NSP distribution
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As the table indicates, more than o
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2.4.7. Complaints The NSW Ombudsman
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NSW Police advised us that calculat
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Another data limitation is that COP
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Chapter 3. Legislative survey This
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Once police have entered the suspec
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The table below sets out the penalt
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(c) that the nature and extent of t
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The Act contains four additional in
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A fortification removal notice is r
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For example, section 39(3) of the Q
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Part Two. Drug premises Chapter 4.
Page 43 and 44:
In the police training manual on th
Page 45 and 46: Case study 2. Drug premises search
Page 47 and 48: 4.2.4. Presenting the application b
Page 49 and 50: A Crime Manager we interviewed from
Page 51 and 52: applications. In this Act, an inves
Page 53 and 54: Chapter 5. The definition of drug p
Page 55 and 56: 5.2. Recommendation That Parliament
Page 57 and 58: 5.5.2. Section 11(2)(b): fortificat
Page 59 and 60: In our chapter on Cabramatta, we di
Page 61 and 62: The woman was found guilty of allow
Page 63 and 64: 5.5.5. Means or devices for drug us
Page 65 and 66: Number of Premises Figure 7. Razor
Page 67 and 68: However, no other evidence of drug
Page 69 and 70: • magnum revolver and a 0.357 mag
Page 71 and 72: 5.5.8. Section 11(2)(g): large amou
Page 73 and 74: The magistrate noted that there wer
Page 75 and 76: In relation to the money located on
Page 77 and 78: 5.7.6. Cars as drug premises As we
Page 79 and 80: … rather than being on the edge o
Page 81 and 82: Chapter 6. The Drug Premises Act -
Page 83 and 84: • the offence of being found on,
Page 85 and 86: With reverse onus, we didn’t have
Page 87 and 88: In the following section, we will d
Page 89 and 90: Officers from the State Crime Comma
Page 91 and 92: The second reading speech, which gi
Page 93 and 94: In the granny flat, police found ca
Page 95: Table 6. Pleas entered and court ou
Page 99 and 100: 13. Allowing use of premises as dru
Page 101 and 102: The defendant says he was not there
Page 103 and 104: Figure 13: Ages of people charged w
Page 105 and 106: Table 12. Number of charges for var
Page 107 and 108: Chapter 7. Cabramatta 7.1. Introduc
Page 109 and 110: No. of Drug Premises Figure 14: Num
Page 111 and 112: Table 13. Information about drug pr
Page 113 and 114: It should be clear that this legisl
Page 115 and 116: The unit was in disarray, with spar
Page 117 and 118: 7.5. Level of drug supply the law i
Page 119 and 120: 7.5.3 Firearms, weapons and high le
Page 121 and 122: 7.6. Charges laid under the Drug Pr
Page 123 and 124: 7.6.4. Young Asian people and drug
Page 125 and 126: Of these 52 people, 31 people pled
Page 127 and 128: 7.8. Conclusion: Impact of the Drug
Page 129 and 130: By way of comment, the continuing a
Page 131 and 132: Chapter 8. Targeting drug supply Pa
Page 133 and 134: Table 18. Drug Misuse and Trafficki
Page 135 and 136: Low level drug suppliers are more l
Page 137 and 138: Other forms of organisation in evid
Page 139 and 140: Table 19. Drugs Located, State-wide
Page 141 and 142: Table 23. Drugs located, Northern R
Page 143 and 144: However, the submission concluded b
Page 145 and 146: To begin with, telephone intercepts
Page 147 and 148:
The prohibited drugs that were loca
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One factor that appears to have per
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