The Offence of Organising a Drug Premises, and Police Powers of Entry

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By Paul Gregoire and Ugur Nedim

NSW Police Strike Force Smede raided a Rhodes riverside apartment on 27 September 2020, uncovering a clandestine drug laboratory in the unit’s garage, while a subsequent raid on a vault on Castlereagh Street in Sydney’s CBD turned up illegal drugs related to the large-scale operation.

Along with the lab setup, officers located 40 kilograms of methamphetamine and 400 grams of MDMA, with a combined street value of $5.62 million. Police also found 65 kilograms of silver bullion, 900 grams of gold, $750,000 in cash and 23 boxes of firearm ammunition.

On the day of the raid, Mario Carnese was arrested and charged over his part in cooking the drugs, running the laboratory and supplying the substances.

The 47-year-old man is now being remanded in prison and is to appear in Parramatta court on 23 November 2020.

Police then arrested Carnese’s partner and fellow occupant of the Rhodes apartment, Jung Im Lee, at Burwood Police Station on 29 September over her part in the operation. The mother-to-be has agreed to strict bail conditions and is to appear in court on 25 November.

Drug manufacture and supply

Carnese has been charged with four offences over his multi-million-dollar drug manufacturing and supply operation.

The drug cook is firstly facing one count of the large commercial manufacture of a prohibited drug, under subsection 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). This crime that carries a sentence of life imprisonment and/or a fine of $550,000.

The former Rhodes resident has also been charged with the large commercial supply of a prohibited drug, contrary to subsection 25(1) of the DMT Act. This offence also carries a maximum of life behind bars and/or a fine of $550,000.

The NSW offences of drug manufacture and supply carry a sliding scale of penalties based on quantity.

Schedule 1 of the DMT Act lists around 200 outlawed substances, plants, precursors and reagents with a set of quantities for each substance.

Each illegal substance has an amount listed that corresponds to the categories of small quantity, traffickable quantity, indictable quantity, commercial quantity and large commercial quantity.

The penalties that apply to a substance increase as the amount gets larger.

Section 29 of the DMT Act contains the controversial law of deemed supply. It stipulates that if an individual is found with more than a traffickable amount of an illegal drug, they can be found guilty of supply, regardless of whether there’s any evidence to show they’ve been providing it to others.

Organising and conducting drug premises

Carnese has also been charged with the offence of organising and conducting a drug premise, under subsection 36Z(1) of the DMT Act.

If found guilty of this offence for the first time, an individual can face 12 months imprisonment and/or a $5,500 fine. For a second or further offence, the crime carries 5 years in gaol and/or a $55,000 fine.

A drug premises is defined as a place where the supply or manufacture of outlawed drugs occurs, or the commercial cultivation of prohibited plants is taking place. And exposing a child under 18 years of age to such an operation increases the penalties that apply to organising such a premises.

Lee too has been charged with multiple offences, one of which is being the owner or occupier of a place and knowingly allowing it to be used as a drug premises, under subsection 36Y(1) of the DMT Act.

For a first offence, this crime carries 12 months on the inside and/or a fine of $5,500. Second and subsequent offences involve maximums of 5 years in prison and/or a $55,000 fine.  And penalties for this offence increase if a child is exposed to the operation.

Thirty-seven-year-old Lee has also been charged with entering, leaving or being on a drug premises, under section 36X of the DMT Act. This carries the same penalties as the conducting or occupier drug premises crimes, with the escalation in sanctions for second and subsequent offences.

Powers of police to enter suspected drug premises

At the turn of the century, drug premises were seen as a growing problem for law enforcement, especially in terms of the heroin trade in Sydney’s Cabramatta. Over the 1990s, it was understood that drug premises had increased dramatically in the southwestern suburb.

Following a NSW Legislative Council inquiry into the issue, as well as sustained police lobbying, the Carr government enhanced policing powers in relation to drug premises, when it passed laws in mid-2001.

Then NSW attorney general Bob Debus oversaw the enactment of a set of new laws regarding “the unlawful use of premises for the supply or manufacture of certain prohibited drugs”, with the creation of the Police Powers (Drug Premises) Act 2001 (the Drug Premises Act).

This legislation set up a drug premises search warrant regime, which enabled police to force their way into a premises suspected of being used to supply or manufacture drugs and search anyone on the property.

Debus’ bill further created the set of offences in relation to drug premises in terms of operating one, being an owner or occupier who allows for use of their premises for drug purposes, along with the offence of being found at a drug house.

The Drug Premises Act also altered a number of pieces of legislation, which included extending move-on powers – then contained in the Summary Offences Act 1988 – to deal with street level drug trade, and it amended the DMT Act to ensure that deemed supply laws can apply to multiple people.

When the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA) commenced on 1 December 2005, it had the effect of repealing the Drug Premises Act, and most of its provisions are now contained in the LEPRA or the DMT Act.

Reversing the onus

The 2005 NSW Ombudsman review of the Drug Premises Act raised questions around the reverse onus provisions related to the offence of being on a drug premises, as it means a person is presumed guilty if found at one. And it’s then left up to the individual to prove their innocence.

“Police have… said that the reverse onus was useful because they could also charge people on drug premises who were not directly involved in drug supply,” the Ombudsman report states in regard to the provision that still applies to the offence to this day.

“One senior officer said that they believed that the ability to charge a person with a drug premises offence may act as a deterrent against that person becoming involved in drug supply in the future.”

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