By way of Summons filed 23 March 2018, the plaintiff, Sergeant Leah Christine Greig, seeks a declaration pursuant to s 3(1) of the Restricted Premises Act 1943 (NSW) (the Act) that the premises at 7/31-33 Harrow Road Auburn are premises to which Part 2 of the Act applies. The plaintiff also seeks a "reputed criminal declaration" under s 3(3) of the Act.
The defendant, Ali Irmak, the registered owner of the premises, has filed a submitting appearance. His legal representatives have advised the Court in writing that the defendant neither consents to, nor opposes, the making of the declaration.
Section 3 of the Act provides:
3 Declaration by Supreme Court or District Court in relation to premises
(1) On a senior police officer showing reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises, that is to say:
(a) that drunkenness or disorderly or indecent conduct or any entertainment of a demoralising character takes place on the premises, or has taken place and is likely to take place again on the premises, or
(b) that liquor or a drug is unlawfully sold or supplied on or from the premises or has been so sold or supplied on or from the premises and is likely to be so sold again on or from the premises, or
(c) that reputed criminals or associates of reputed criminals are to be found on or resort to the premises or have resorted and are likely to resort again to the premises, or
(d) that any of the persons having control of or managing or taking part or assisting in the control or management of the premises:
(i) is a reputed criminal or an associate of reputed criminals, or
(ii) has been concerned in the control or management of other premises which have been the subject of a declaration under this Part, or
(iii) is or has been concerned in the control or management of premises which are or have been frequented by persons of notoriously bad character or of premises on or from which liquor or a drug is or has been unlawfully sold or supplied,
(e) (Repealed)
the Supreme Court or the District Court may declare such premises to be premises to which this Part applies.
(2) Such declaration shall be in force until rescinded.
(3) The appropriate Court may, in declaring premises to be premises to which this Part applies, state that the reason (or the predominant reason) for the declaration is that:
(a) reputed criminals have attended or are likely to attend the premises, or
(b) a reputed criminal has, or takes part or assists in, the control or management of the premises.
Any such declaration is a "reputed criminal declaration" for the purposes of this Act.
The legislative scheme contemplates that, upon one of the criteria under s 3(1) being fulfilled, the Court has a discretion to make the declaration. That discretion ought to be exercised with regard to the drastic consequences that flow from such a declaration, including the conferral on police of the power to enter and search the subject premises without a warrant and the liability of the owner and/or occupier of the premises to prosecution under the Act: Beeche v Smith Street Investments Pty Ltd [2018] NSWSC 544 at [19].
The Summons is supported by an affidavit sworn by Sergeant Greig on 24 October 2017 and a further affidavit sworn 11 April 2018, together with copious annexures setting out the detail of police attendances at the subject premises.
The affidavits establish the following facts and circumstances.
The premises consist of a two bedroom apartment on the second floor of a block of units. The front door to the foyer of the block is not locked and remains open. Access to the premises is via a large black steel fortified door with multiple internal locking mechanisms. There are three external cameras at the front and side of the premises that do not record but allow the occupants to monitor persons seeking admission to the premises.
The defendant is currently on remand awaiting trial for aggravated sexual assault charges. He has a lengthy criminal history which includes convictions for numerous drug supply offences. In early 2008, late 2010 and early 2012, police executed search warrants on the premises which variously resulted in cannabis, methylamphetamine and large amounts of cash being seized. The defendant was in occupation on those occasions. The defendant's brother, who owns unit 2 in the same block, also engages in drug supply.
The premises are managed by a real estate agency in Auburn. Enquiries reveal that an application for a tenancy of the premises was completed on 7 April 2014 by a woman named Caroline Santos. That tenancy has continued since that date, despite the fact that Ms Santos left Australia in 2014 shortly after signing the lease and has not returned. The electricity account for the premises is in the defendant's name, care of his mother's address.
In short, it appears that no-one is in occupation of the premises. However, a number of persons with criminal histories have been observed to enter and leave the premises on an ongoing basis, and have admitted to police that they are supplying drugs from the premises.
Between 1 January 2016 and 10 August 2017, there were 455 occasions involving the supply of illicit drugs from, or in association with, the premises that resulted in some form of legal action being taken. The premises have been the subject of 11 search warrants, a controlled operation and a shooting, all related to the supply of illicit drugs. The premises are "open" for the sale of cannabis between 9am and 2am every day. Between 5pm and 11pm as many as 30 persons per hour attend the premises for the purchase of drugs. Police estimate the annual income from this volume of sales to be between $1.3 million and $3.2 million.
Between 3 August 2017 and 25 February 2018, there have been 164 occasions when police have taken action against persons in possession of cannabis that has been supplied from the premises.
On those occasions when police have attempted to enter the premises to execute a search warrant, it has been necessary to cut through the front door to remove it. By the time entry has been effected, the drugs have been disposed of by the occupants.
Since 2005, police have conducted numerous investigations into the supply of drugs from the premises and have identified a number of the defendant's associates who frequent the premises. They include his brother Recap Irmak, Bilel Tamer, Adham Warwar, Murat Gulasi, Sagar Patel, Michael Faavesi, Bradley Anson, Atilla Ozdemir, Mohammed Zraika, and Hossain Mokhtar. Of these individuals, Messrs Warwar, Gulasi and Ozdemir come within the definition of "reputed criminal" (s 2 of the Act), that is, they have each been convicted of at least one indictable offence.
On the basis of this information, which is not challenged, the plaintiff has established that there are reasonable grounds for suspecting that drugs are unlawfully sold or supplied on or from the premises and that drugs have been so sold or supplied on or from the premises and that it is likely that drugs will continue to be sold on or from the premises. In addition, the plaintiff has established that there are reasonable grounds for suspecting that reputed criminals or associates of reputed criminals are to be found on or resort to the premises or have resorted and are likely to resort again to the premises, and that there are persons having control of or managing or taking part or assisting in the control or management of the premises who are reputed criminals or an associate of reputed criminals.
Given the long history of drug dealing from the premises, the absence of any genuine occupant, and the fortified nature of the premises, I consider the exercise of the discretion under s 3 of the Act to be warranted.
Accordingly, I make the following declarations:
1. The premises at 7/31-33 Harrow Road Auburn are premises to which Part 2 of the Restricted Premises Act 1943 (NSW) applies.
2. The predominant reason for the declaration in (1) is that reputed criminals have attended or are likely to attend the premises.
3. No order as to costs.
[2]
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Decision last updated: 10 July 2018