Allowing use of premises as a drug premises – s 36Y Drugs Misuse & Trafficking Act 1985 (NSW)

The maximum penalty for this offence is:

• 12 months’ imprisonment or 50 penalty units ($5,500) or both (first offence)
• 5 years imprisonment or 500 penalty units ($55,000) or both (subsequent offence)

The penalty increases if a child has access to the drug premises. The maximum penalty increases as follows:

• 14 months’ imprisonment or 60 penalty units ($6,600) or both (first offence)
• 6 years imprisonment or 600 penalty units ($65,000) or both (subsequent offence)

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• you are the owner or occupier of a premises suspected of being a drug premises, and
• you knowingly permitted the use of the premises as a drug premises.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A fine
  • This varies depending on whether a first or subsequent offence has been committed.
• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option (when aggravating circumstances Examples of aggravating circumstances include a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• you are the owner or occupier of a premises suspected of being a drug premises, and
• you knowingly permitted the use of the premises as a drug premises.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

NB: s 36W (2) of the Act provides a list of facts that the court may have regard to when determining whether a premises was being used as a drug premises.

Defences

• The property was not a drug premises.
• You are not the owner or occupier of the property suspected of being a drug premises.
• You did not knowingly permit the use of the premises as a drug premises.
• Duress.
  • Another person threatened or coerced you into allowing the property to be used a drug premises.