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

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6.7.2. Gender of people charged with organising, conducting or assisting drug premises Seventy five percent (75%) of those charged with a first offence of organising, conducting or assisting drug premises were male, and twenty five percent (25%) were female. Two of the three people charged with a second offence under this provision were male, and one was female. 6.7.3. Aboriginal and Torres Straight Islanders No Aboriginal and Torres Straight Islanders were charged under this provision. Table 8. Pleas and court outcomes for people charged with a first offence of organising, assisting or conducting drug premises Plea Guilty (n=9) Not guilty (n= 4) Plea not entered or N/A (n= 19) Convicted Ex parte (non- appearance) 0 8 6 Conviction proven 8 2 Dismissed: after hearing 0 1 Dismissed: no evidence offered 0 3 8 Dismissed: stood out of list 1 0 3 Data source: NSW Local Criminal Courts Statistics 1 July 2001- 30 June 2003, BOCSAR. Source: NSW Local Criminal Courts Statistics 1 July 2001- 30 June 2003, BOCSAR. Of the four charges for a second offence of organising, assisting or conducting drug premises, all failed to appear and were convicted in their absence, and no plea had been entered. In the table below, information on the penalties received by persons convicted of organising, assisting or conducting drug premises is set out. 528 Table 9. Organise, conduct or assist in organising or conducting drug premises (firs offence) BOCSAR State-wide statistics, penalty type Penalty Type Occurrence Imprisonment (6- 12 months) 5 Suspended sentence 2 Bond with supervision (12 to 14 months) 1 Fine (less than $500) 1 Total 9 Source: NSW Local Criminal Courts Statistics 1 July 2001- 30 June 2003, BOCSAR. 6.8. Offence by owner or occupier of allowing use of premises as drug premises Section 13 of the Drug Premises Act provides that owners or occupiers who knowingly allow their premises to be used as drug premises may be charged with an offence: 528 No data was available from BOCSAR on persons convicted of a second offence of allowing premises to be used as drug premises. 98 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
13. Allowing use of premises as drug premises A person who is the owner or occupier of any premises must not knowingly allow the premises to be used as drug premises. 529 Over the two year review period, 108 charges were laid under this provision in the Act. Of these charges, four were for a second offence under this provision. Of those charged with a first offence of allow premises to be used, 83% (90 people) were occupiers, 12 % (13 people) were owners and 5% (5 people) were owner/occupiers. Of the four people charged with a second offence under this provision, two were occupiers, one was an owner, and one was an owner/occupier. This provision would appear to be aimed at those who are involved in organising, and profiting from, drug premises. Criminal asset confiscation provisions also apply to those people convicted of a second or subsequent offence of allowing use of premises as drug premises. 530 For an owner or occupier to be found guilty of allowing premises to be used as drug premises, the prosecution must prove that the owner/occupier knowingly allowed their premises to be used for this purpose. Therefore, unlike the two offences discussed above, the onus of proof is not reversed. In order to successfully prosecute a person for this offence, there must be some act or conduct that proves that the defendant had this knowledge. Police anticipated from the outset that there may be difficulties in proving this offence. This is evident in training material prepared on the Act. 531 One officer from Cabramatta said that with this offence, “you’ve got to prove knowledge, we run into that problem a lot” and that “the knowledge one is a lot more difficult”. 532 In relation to the requirement that the prosecution must prove knowledge, the NSW Legal Aid Commission stated in its submission to our discussion paper that: As a matter of principle, the Legal Aid Commission is of the view that all offences should require proof of mens rea 533 and that the current barriers should remain untouched. 534 In our discussion paper, we asked respondents to indicate if there had been any unnecessary difficulties in proving this offence. NSW Police reported that there had been difficulties in proving this offence, particularly in some LACs. 535 Case study 15. Allowing premises to be used as drug premises in Cabramatta, non-continuous occupation of the premises In this incident, a drug premises search warrant was applied for and granted in relation to a house in Cabramatta. Over the preceding couple of days, several successful controlled drug buys had been conducted through the bars of a bedroom window in the house. The search warrant was executed at 11.00 pm that night. Police rescue were in attendance, and cut through a security grill on the front door after attempts to get the occupants to open the door were ignored. When they entered, police note in the event narrative that they found a 28 year old Asian male in the main bedroom, who they subsequently charged with being found on drug premises. Half an hour after police arrived, a female resident returned home. When she was searched by police, $1,300 was found in her back pocket. The woman was charged with goods in custody, and with allowing her premises to be used as drug premises. A 21 year old Asian woman who was also found on the premises was also charged with being found on drug premises. At court, the magistrate considered that there was ample evidence that the premises were drug premises when the search warrant was executed, and that it was evident that the woman was an occupier of the premises from time to time. The prosecution put the following argument to the court that the woman had knowingly allowed her house to be used for drug supply: 529 Police Powers (Drug Premises) Act, s. 13. 530 Criminal Assets Recovery Act, s (2)(e1) and s 6(4). This provides for the initiation of civil proceedings that may result in the seizure of the assets or “interests” of a person who has been convicted of this offence on more than one occasion. 531 NSW Police, Training Video, Police Powers (Drug Premises) Act, undated (circa, July 2001). 532 Focus group, Cabramatta Police, 2 July 2003. 533 “Mens rea” or “guilty mind”, refers to a test that applies to a number of criminal offences relating to the state of mind of the accused, in which the prosecution is required to prove that the accused had a “guilty mind” when the offence was committed. 534 NSW Legal Aid Commission, Submission, 30 July 2003. 535 NSW Police, Submission, received, 12 August 2003, and Submission received from the NSW Police Drug Squad, 1 August 2003. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 99
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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 and 96: Table 6. Pleas entered and court ou
Page 97: The magistrate said that he had a r
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
Page 149 and 150:
One factor that appears to have per
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