Use of leased premises for unlawful purpose - Supply of drugs and Drug house - Termination of lease by Tribunal.
Legislation Cited: Residential Tenancies Act, 2010
Civil and Administrative Tribunal Act, 2013
Drug Misuse and Trafficking Act 1985
Cases Cited: Australian Broadcasting Tribunal -v- Bond [1990] HCA 33
Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43
Source
Original judgment source is linked above.
Catchwords
Use of leased premises for unlawful purpose - Supply of drugs and Drug house - Termination of lease by Tribunal.
Legislation Cited: Residential Tenancies Act, 2010Civil and Administrative Tribunal Act, 2013Drug Misuse and Trafficking Act 1985
Cases Cited: Australian Broadcasting Tribunal -v- Bond [1990] HCA 33Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43R v Knight, Brian and Knight, Kevin [2008] NSWDC 135R v Kym Bradley Vermuelen (unreported), NSWCCA 30
Judgment (19 paragraphs)
[1]
INTRODUCTION
This was the hearing under section 80 of the Civil and Administrative Tribunal Act 2013 ("the Act") of an internal appeal by NSW Land & Housing Corporation ("the Landlord") from the decision of the Member of the NSW Civil and Administrative Tribunal sitting in the Consumer & Commercial Division ("the Member").
The decision was to refuse the Landlord's Application under s.91 of the Residential Tenancies Act, 2010 ("the Tenancies Act") that its lease to the Respondent ("the Tenant") of a residential unit at Waterloo be terminated and the Landlord have possession of the unit.
[2]
SECTION 91 OF THE RESIDENTIAL TENANCIES ACT, 2010
Section 91 of the Tenancies Act provides:
91 Use of premises for illegal purposes
(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted:
(a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or
(b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination.
(2) In considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the following:
(a) the nature of the unlawful use,
(b) any previous unlawful uses,
(c) the previous history of the tenancy.
(3) The termination order may specify that the order for possession takes effect immediately.
(4) A landlord may make an application under this section without giving the tenant a termination notice.
(5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
Paragraph 91(1)(a) relates to use of the unit for activities of manufacture, sale, cultivation or supply of prohibited drugs.
Paragraph 91(1)(b) relates to use of the unit for another unlawful purpose and would include use as a place where people use a prohibited drug or prohibited drugs ( which in these reasons are referred to as a " drug house").
It is noted that ss.91(2) applies only to conduct under paragraph 91(1)(b) and does not apply to conduct under paragraph 91(1)(a).
The Application was filed on 13 February 2014 and sought termination of the tenancy under s.91 "due to unlawful use of the premises". The Application did not state whether the unlawful use fell within paragraph 91(1)(a) or 91(1)(b) or both.
But at the start of the hearing Mr White, for the Landlord, announced that the Landlord's case was on two bases:
1. Paragraph 91(1)(a) in that the premises in question were being used for the supply of a prohibited drug (transcript page 20, lines 11-15); and
2. Paragraph 91(1)(b) in that the premises were being used as drug premises (transcript page 32 lines 12-47, page 33 lines 15, 36 and 45, and page 34 line 9).
[3]
RELEVANT PROHIBITED DRUGS
Section 3 of the Drug Misuse and Trafficking Act 1985 defines "prohibited drug" as "any substance, other than a prohibited plant, specified in Schedule 1. It defines "prohibited plant" to include a cannabis plant cultivated.
Schedule1 includes cannabis leaf, cannabis oil, and cannabis resin. They are prohibited drugs. Methamphetamine (also known as "methamphetamine" and "ice") is also included in the first schedule and is a prohibited drug.
[4]
THE GROUNDS OF APPEAL
The Grounds of Appeal are:
1. The Tribunal erred in either failing to apply and/or misapplying s.91(1)(a) of the Tenancies Act;
2. The Tribunal misconstrued s.91(1)(b) of the Tenancies Act (related to Ground 1);
3. The Tribunal erred in its Findings:
1. [At 21] there is no evidence before the Tribunal of any serious adverse effects on the neighbouring residents;
2. [At 25] there is no evidence from the [Appellant] as to what impact the failure to terminate the agreement would have on neighbouring residents …. ; and
3. [At 29] … the [Appellant] has not provided the Tribunal with any evidence that assists the Tribunal in determining whether there is an impact on … its other tenants in the locality.
The argument raised by the Appellant is that the Tribunal could have drawn inferences that it was requested to draw from the evidence that:
1. (a) The use and supply of Methamphetamines has an adverse effect both on users and their health [transcript p.p.33 lines 12-17]; and
2. (b) The use and supply of Methamphetamine has an adverse effect on neighbours, who may be effected by the traffic to the premises, the conduct of people under the influence of drugs, and subsequent fear that their children might be exposed to the activity [transcript p.p.33 lines 17-20];
3. The Tribunal erred in applying s.91(2) of the Tenancies Act. If the Tribunal was exercising its discretion following the finding of a breach under s.91(1)(a) of the Tenancies Act then it erred because s.91(2) did not apply to such a breach. If it was exercising its discretion following a finding of a breach under s.91(1)(b), the discretion miscarried through misapplication of the factors listed in s.91(2).
4. This Ground is an alternative to Ground (4). If the Tribunal's consideration of the discretionary factors was part of an overall general discretion then the Tribunal erred and the decision was against the weight of the evidence.
5. The Appellant seeks leave under s.80(2) of the Act to raise the last Ground, namely, that the Tribunal's decision was against the weight of the evidence.
[5]
GROUND 1: The tribunal erred in either failing to apply and/or misapplying s.91(1)(a) of the Tenancies Act
The Member in his Reasons erred in paragraph 2 when in stating the Orders sought by the Landlord said the Landlord was seeking an order "to terminate the Residential Tenancy Agreement pursuant to s.91(1)(b) ……… and to obtain possession". The Applicant was in fact relying on both paragraphs 91(1)(a) and 91(1)(b).
The Member referred to Police charges against the tenant on 9 October 2013. The evidence in the criminal records of the tenant and the statement of Detective Constable Eamonn Byrne established the correct date. The Member, referring by mistake to 8 April 2014 as the date of the charge said in his reasons:
"10 The respondent was charged under the Drug Misuse and Trafficking Act 1985 on 8 April 2014 with:
a. Supply of' a prohibited drug (3.4 grams of methyl-amphetamine): s25 (1) of that Act;
b. Possession of a prohibited drug (4.1 grams of cannabis): s10 (1) of that Act;
c. Possession of a prohibited drug (0.8 grams of methyl-amphetamine): 810 (1) of that Act.
11. The quantity of the prohibited drug is a trafficable amount and is there is therefore a deemed supply.
12. On his own admission respondent entered a plea of guilty to the charges and entered MERIT programme overseen by the Drug Court.
13. S.91 (1) of the Act permits the Tribunal a discretion to make a termination order if it is satisfied that a tenant of residential premises has intentionally of recklessly caused or permitted those premises to be used for the purpose of supply of any prohibited drug.
14 On the evidence adduced by the applicant without objection by the respondent, the Tribunal is satisfied that the respondent used the residential premises that he occupies as a tenant of the applicant for the deemed supply of a prohibited drug."
The member there purported to be determining whether the Respondent had breached paragraph 91(1)(a) of the Tenancies Act. But the conclusion reached in paragraph 14 that: "the Respondent used the residential premises that he occupies as a tenant of the Applicant for the deemed supply of a prohibited drug." Paragraph 91(1)(a) does not speak of "deemed supply" but of "supply".
The wide definition of the word "supply" in section 3 of the Drug Misuse and Trafficking Act 1985 is expressed to be the definition for purposes of that Act "except insofar as the context or subject-matter otherwise indicates or requires". It does not apply to provisions of the Tenancies Act. Similarly, the wide definition of "trafficable quantity" section 3 of the Drug Misuse and Trafficking Act 1985 is expressed to be for the purposes of that Act and it does not apply under the Tenancies Act.
[6]
GROUND 2: The Tribunal misconstrued s.91(1)(b) of the Tenancies Act (related to Ground 1)
The Ground under para 91(1)(b) was that the premises were being used as a drug house. A careful reading of the reasons reveals that the Member did not consider the evidence in relation to that issue or make a determination in relation to that issue. In that regard the Member erred.
The Member then failed to address, assuming the premises were so used, whether that use was sufficient to justify termination of the lease.
[7]
Ground 3: Failure to draw inferences requested to be drawn.
The submissions in support of this Ground are that the inferences were open on the evidence and the Tribunal was wrong to find otherwise. The submission is that there was ample evidence that the use of the apartment for supply of Methamphetamine or for the use of Methamphetamine has an adverse effect on the users and on neighbours. The submission is that findings of no evidence on those issues was not open because there was material before the Tribunal capable of supporting such inferences.
In Australian Broadcasting Tribunal -v- Bond [1990] HCA33, Mason CJ referred [at 94] to the "traditional Common Law principal that an absence of evidence to sustain a finding or inference gives rise to an error of Law", and [at 97] that if a finding of fact:
"… does not constitute a 'decision', it is beyond review independently of such 'decision'. In accordance with what I have already said, a finding of fact will then be reviewable on the ground that there is no probative evidence available to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing."
Contrary to the findings made by the Member that are the subject of this Ground, there was evidence, which we will detail later, that was supportive of inferences the Tribunal had been asked to draw. It therefore compels a conclusion that the Member erred in making the findings that there was no evidence of any serious adverse effects on the neighbouring residents, as to what impact the failure to terminate the agreement would have on the neighbouring residents, and as to the likely impact on the Landlord's other tenants in the locality.
Inferences can be drawn from legislative prohibitions making specified drugs unlawful. In Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43 (4 September 2008) a Full Bench of six members of the High Court unanimously held [at 57]:
"A reasonable person in the position of the Defendant would have foreseen that the conduct of the activities the subject of the Authorities would involve a risk of seriously endangering the health of some at least of the numerous class of end of purchases of the cocaine. The contrary is impossible to reconcile with the legislative Judgment, reflected both in federal and the State law, prohibiting respectively the importation, supply and possession of such drugs. That prospect was sufficient to attract, as the legislative response to such a situation of risk, the prohibition if par (b) of s.71 of the Law Enforcement (Controlled Operations) Act 1997 (NSW)."
[8]
GROUND 4: The tribunal erred in applying s.91(2) of the Act. If the Tribunal was exercising its discretion following the finding of a breach under s.91(1)(a) of the Act then it erred because s.91(2) did not apply to such a breach. If it was exercising its discretion following a finding of a breach under s.91(1)(b), the discretion miscarried through misapplication of the factors listed in s.91(2).
Although the Member made a finding of "deemed supply" and supply was an issue under paragraph 91(1)(a) but not 91(1)(b), it does not appear from the reasons or from the orders that the Tribunal Member subsequently dealt with the Application under paragraph 91(1)(a) and instead proceeded under paragraph 91(1)(b).
That exercise was then marred by errors of law referred to under Ground 3.
[9]
GROUNDS 5 & 6
Ground 5 is an alternative to Ground (4). The success of Grounds 1 to 4 means it does not fall to be decided.
Similarly because of the findings on grounds 1 to 4 the Member's decision will need to be set aside and a fresh decision, so it is not necessary to decide Ground 6.
[10]
SETTING ASIDE THE MEMBER'S DECISION AND FRESH HEARING
Given the findings under Grounds 1 to 4, this Appeal Panel has determined that the findings above of errors of law made by the Member are sufficient to warrant that the decision of 19 August 2014 be set aside and there be a new hearing of the applications of the Landlord.
Neither party proposed to introduce any additional evidence. The evidence before the Panel includes the documents relied upon the parties before the Member and also a full transcript of the hearing. The Panel therefore has decided under para 80(3)(a) of the Act to deal with the appeal by way of a new hearing.
[11]
CREDIT OF THE TENANT
It is notorious that Methamphetamine is addictive. The Tenant's evidence was that he has had a sore back since his 20's and has had 2 back operations. He says he has been using "ice" since the late 90's for pain relief. He testified: "I started to get used to the ice, so I was a (indistinct) user of it." (T37 L34-35)
He testified that in respect of charges in 2006 which a criminal court found proved on 27 July 2007 (5 counts of supplying a prohibited drug, one count of possession of a prohibited drug, and one count of allowing the subject apartment to be used as a drug house) he was refused bail after the charges and spent 3 months in prison before bail was granted. The prohibited drug was Methamphetamine. The subsequent orders of the Court in 2007 suspending his 12 month Gaol sentence on conditions included a condition that be supervised by the Probation Service, obey their requirements and undertake such courses in relapse prevention as the Parole Service directs. The court recognised that whether or not he was currently abstaining, he was an addict.
He has a conviction for possession on 3 July 2013 of a prohibited drug.
He also testified that in respect of charges arising from a raid on his apartment on 9 October 2013 he was dealt with by the Drug Court and sentenced to 6 months imprisonment suspended on the condition that he attend a month in a residential detox programme at Silverwater Gaol then comply with an intensive 12 month rehabilitation programme including, attending counselling twice per week, urine tests three times per week, and reporting to the Drug Court Judge every Thursday for 3 months. It appears from his evidence that the decision of the Drug Court was in about June 2014. He said at the hearing before the member he had 11 months of the 12 months programme ahead of him.
In his evidence in August 2014 the Tenant said "I do have a habit but I have not sold from my premises, which they do not have any proof….. I do not sell from my premises, never have. I use the ice myself. " "(T38 L38- 43)
He also testified:
"and I'm trying to get drugs out of my life, sir, once and for all, and hopefully, I'll do it right this time. I've just started the program, as I just said. I have 11 months - 11 months to go and the Judge has said - approved my premises to be the place of - for me to stay while this program is to last length. Hopefully you know, I'll come out of it a man."
[12]
EVIDENCE RELEVANT TO BOTH GROUNDS
On the balance of probabilities the Tenant has been addicted to Methamphetamine for more than 8 years. The panel is comfortably satisfied by the evidence that the Tenant supplies Methamphetamine to others and that he sells it. It is notorious that Methamphetamine is an addictive drug and its users sometimes demonstrate extreme behaviour, particularly violence.
The parliament in the provisions of the Drug Misuse and Trafficking Act 1985 has treated it as a serious threat to our society. It has in sections 10 - 19 of Division 1 of Part 2 of that Act prohibited summary offences (involving small quantities) by way of its manufacture, possession, supply, or self administration, or possession of equipment for using it, or sale, display or supply of ice pipes, or aiding or abetting any of those offences. The penalties in that group of summary offences are up to 2 years of imprisonment and a fine of up to 20 penalty units. But for larger quantities and particularly commercial activities the indictable offences in the Division 2 sections that apply to Methamphetamine are subject to very high penalties of imprisonment of up to 25 years and/or a fine of up to 5,000 penalty units.
It can be inferred that such serious legislative prohibitions, restrictions and penalties are imposed in relation to the drug for good reason -- to protect members of the community from serious harm to users and to other members of our society from the conduct of users. (See also the discussion of dicta from Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43 and from R v Knight, Brian and Knight, Kevin [2008] NSWDC 135 earlier).
The evidence is that the Tenant has been tenant of the apartment under a tenancy agreement since 11 November 2002. It is a 2 bedroom apartment. (The finding that he had been a tenant of the apartment for nearly 14 years in the decision of the Member is on the evidence incorrect.)
Mr White, an employee of the Landlord who appeared as agent for the Landlord, was affirmed and gave evidence. His evidence (T29 L1-7) is that he had been the "team leader" for the Landlord in the Waterloo area and had a very good knowledge of the area. His responsibility included the building in which the premises are located. He is familiar with the building. The landlord classified the building as "family high rise" and it was "identified" by the Landlord as "primarily for families" "with a focus on allocating to people with young - with families, children."
[13]
PARAGRAPH 91(1)(a): DID THE TENANT INTENTIONALLY OR RECKLESSLY CAUSE OR PERMIT THE USE OF THE APARTMENT FOR THE SUPPLY OF ANY PROHIBITED DRUG?
The history of the Tenant's long involvement with ice, his limited income from other sources available to meet the cost of a Methamphetamine habit, and the Methamphetamine quantities, drug measuring and packaging items, and the other extensive drug paraphernalia discovered on the Police raid on 9 October 2013, together with the poor credit of the Tenant result in the Tribunal being comfortably satisfied that he was intentionally causing the apartment to be used for measuring quantities of Methamphetamine into small plastic bags for the purpose of supply to other people.
Regardless of whether he was doing this for sale from his apartment or for sale elsewhere, the Panel is comfortably satisfied that he offended paragraph 91(1)(a) in that he intentionally caused the apartment to be used for the purposes of supply of a prohibited drug, Methamphetamine.
[14]
PARAGRAPH 91(1)(b): DID THE TENTANT INTENTIONALLY OF RECKLESSLY CAUSE OR PERMIT THE USE OF THE APARTMENT FOR ANY OTHER UNLAWFUL PURPOSE?
The Panel is comfortably satisfied on the balance of probabilities that the Tenant intentionally used, and intentionally permitted others to use, the apartment as a drug house. And therefore he offended para 91(1)(b). There are at least three aspects to this, which are:
1. The evidence establishes that the Tenant, on his own admission, used the apartment for unlawful possession and unlawful use of Methamphetamine and Cannabis.
2. On his own evidence the Tenant unlawfully permitted the use of the apartment by Mr D'Ambrosio and his girlfriend to unlawfully possess and use unlawful drugs which each injected into himself or herself from time to time over a period of three weeks. The Appeal Panel is comfortably satisfied Mr D'Ambrosio and his girlfriend were injecting a prohibited drug rather than a medication or other legitimate substance because of the evidence of their injecting, the surrounding circumstances in the apartment, the Tenant's long and extensive involvement in possessing, using and supplying of unlawful drugs, the Tenant's evidence in cross-examination disapproving their use of needles, his evidence that: "I have nothing to do with the needles at all, never have", and his evidence of his discussion with Mr D'Ambrosio, apparently about those issues, when Mr D'Ambrosio assured him he would move out within a week.
3. On his evidence, prior to his arrest in July 2013, a young female stayed in his apartment overnight and he found her stealing from him the following morning. He "threw her out". He testified:
"She went straight to the Police to state that there we were doing the drugs and so forth and so on. It was true, we did have a smoke the night earlier. I do not inject, sir, never have. I'm only a smoker."
1. The Appeal Panel is comfortably satisfied from that evidence that on that occasion he and the young lady unlawfully used (smoked) Methamphetamine and therefore he intentionally permitted the apartment to be used for the unlawful purpose of consumption of a prohibited drug by the young lady.
[15]
MATTERS UNDER SUBSECTION 91(2)
These matters are required to be taken into account in respect of the breach of paragraph 91(1)(b) - use of the premises as a drug house. They are relevant also to the matter under paragraph 91(1)(a):
1. The first matter under the section is the nature of the unlawful use. The findings in respect of each unlawful use have been set out above;
2. Any previous unlawful uses - he previously intentionally allowed the apartment to be used as a drug house in 2006;
3. The other previous history of the tenancy and the findings in that regard are that the tenancy commenced on 11 November 2002 and is still current. There is no evidence of any breaches of the tenancy agreement or the Act other than the findings above in relation to breaches of paragraphs 91(1)(a) and 91(1)(b) of the Tenancy Act.
The evidence is that the Police obtained their warrant in October 2013 as a result of the Police receiving "information that the occupant was dealing drugs". There is no evidence as to whether the informant was a fellow occupant of the same building. There is the unusual fact that when the warrant was exercised at 8.15am on a Wednesday there were 5 adults in the apartment (not including Mr D'Ambrosio and his girlfriend who were staying there at the time). While that raises a suspicion that the group had been there to use drugs or those other than the Tenant were there to obtain drugs, the evidence falls short of satisfying the tribunal of either proposition.
[16]
OTHER EVIDENCE / INFERENCES
Users of Methamphetamine are notoriously known to sometimes exhibit extremes of behaviour, including violence. People with drug addictions are notorious for stealing in order to raise funds to buy drugs. It is notorious that drug addictions are very damaging to the health of the users and to their relationships with others. It is also notorious that Methamphetamine users can exhibit extremes of behaviour including violence. The use of the drug presents the likelihood of harm to the health of the user, and the risk of injury to neighbours and other people with whom the user has contact. There is also the risk that persons with an addiction to the drug will steal from others or commit other crimes against others for the purpose of obtaining money to feed the habit.
The activities of the Tenant of using ice, supplying it to others and using the apartment as a drug house presents a risk of harm to other occupants of the building where the apartment is located and to visitors to the building and members of the community in which the building is located or where users he supplies are located. Because of the Tenant's addiction, there is a risk that he will even sell the drug to teenagers. There is real a risk of harm (by way of injury or corruption) from users or the Tenant to children and teenagers who live in the building or visit parents, grandparents or others in the building.
[17]
CONCLUSIONS
The breaches of the prohibitions in section 91 are serious and have resulted from the Tenant's involvement with Methamphetamine for more than 14 years. The continued occupation of the apartment by the Tenant, given his addiction, renders further such breaches likely and involves a very real risk to users, persons to whom the Tenant may supply the drug, persons he may permit to use drugs in the apartment, innocent occupants of the building and visitors to it (including Children).
Quite apart from breaches of section 91(1), the Tenant has by such breaches also contravened clause 7.1 of the parties' Residential Tenancy Agreement which prohibits use of the apartment for any illegal purpose.
For all these reasons the panel has concluded that the grounds under paras 91(1)(a) & (b) of the Tenancies Act have both been established and in the circumstances each is sufficient to justify termination of the lease. The lease should be terminated immediately and the Tenant ordered to give vacant possession.
[18]
ORDERS
Accordingly the orders are:
The appeal is allowed and the orders of the Consumer and Commercial Division of the Tribunal made on 19 August 2014 in proceedings SH14/08653 between the parties are set aside.
The residential tenancy agreement between the parties for the Respondent to occupy the Appellant's premises known as 1108/149 Cope Street, Waterloo NSW is terminated.
The Respondent John Raglione must give possession of the premises to the Appellant immediately.
If the Respondent does not comply immediately with order 3 he must pay the Appellant an occupation fee calculated in accordance with section s.123(2) of the Residential Tenancies Act 2010.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[19]
Amendments
06 May 2015 - legislation now imported
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 May 2015
In addition, the provisions of s.29 of the Drug Misuse and Trafficking Act 1985 providing that possession of not less than the trafficable quantity of a prohibited drug is deemed to have the prohibited drug for supply unless the person proves otherwise or that the drug was obtained in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner, are not expressed to have application except under that Act. There is no provision for it to be applied to proceedings under the Tenancies Act.
In his subsequent paragraphs of his decision, the Member did not refer again to paragraph 91(1)(a). In paragraph 47 where he sets out his orders the Member said:
"Accordingly the Tribunal:
dismisses the application to terminate the residential tenancy agreement pursuant to s 91 (1) (b) and s187(1)(i) and the consequential application for payment of an occupation fee pursuant to s.123 of the Act;
b. Orders that the respondent comply with his obligations to the applicant pursuant to the residential tenancy agreement and generally under the Act pursuant to s187 (1) (a) and s187 (1) (h) of the Act."
The Member clearly erred in that he did not determine the Application under paragraph 91(1)(a). He did not make a finding on the evidence as to whether the tenant had intentionally or recklessly caused or permitted use of the premises for the supply of a prohibited drug.
In R v Knight, Brian and Knight, Kevin [2008] NSWDC 135, Nicolson S.C. DCJ stated:
"It is not difficult to understand why drug supplying is a criminal activity.... The
courts have long recognised that in assessing the objective seriousness of a
drug offence, it is necessary to have regard to the drug's potential for harm.
[28] ...Drug dealing is harmful to the community by its direct impact upon
those who purchase drugs and by its indirect impact upon the community at
large. Some if not most drugs, and particularly cannabis and amphetamines,
can be addictive. Some are otherwise destructive, causing or contributing to
mental health problems ... Drug addicts are human beings whose capacity to
function and to feel human is smothered to a greater or lesser extent by
addiction and other effects of drugs ...
[29] Associated with drug addiction are other forms of crime such as
robberies, break, enter and steals. ... At every level then, drug dealing is
conduct that is corrosive on society and therefore anti-social."
But the Tenant in his evidence testified, "I've never been an addict." This is inconsistent with his long history of continuing use of an addictive prohibited drug and the fact that in 2006 the Sydney District Court and October 2013 the Drug Court were satisfied that he had an addiction. There is no objective and reliable evidence that he is not still an addict or that he is now abstinent.
The NSW Court of Criminal Appeal, when dealing with a drug addict who instructed his Counsel and informed a reporting psychiatrist that he had not smoked any cannabis or used drugs of any kind since his arrest, held: "experience teaches that in that regard evidence coming from a drug addict himself is commonly unreliable" (per Allen J with whom Gleeson CJ and Ireland DJ agreed in R v Kym Bradley Vermuelen (unreported), NSWCCA 30 March 1994).
In R v Bittar, Louise [2010] NSWDC 263 at [31] Nicholson SC DCJ said, in respect of sentence:
"The responsibility of providing proof other than oral evidence from her, rests with her. In other words, if you have done random urine, I would expect that to be reported by Probation and Parole. If you want to tell me that you have been working somewhere, I will need a pay slip, if you want to be working with a community activity, … then I need some proof of that. I am old cynic and I do not usually believe off-hand what drug addicts tell me."
The Tribunal is mindful that the courts have long recognised that people with a drug addiction, such as the Tenant, are notoriously unreliable witnesses, particularly when giving evidence in proceedings about the extent of their drug use or other issues that can weigh against them in the proceedings.
The tenant did not make any affidavit in the proceedings. He did not rely on a statement. His only evidence was oral evidence he gave on a religious oath at the hearing. The Tenant did not rely on evidence by anyone else to corroborate his evidence. He said he had "paperwork" and later "letters" including one from his doctor, that he had intended to bring to the hearing but had forgotten to bring. He referred then to his doctor as "one of the few people who knows me" who "could state what type of person I am." But there was no evidence of the doctor or a neighbour or any other person in his case and no letter or other document by any other person in support of his case.
In his oral evidence the Tenant testified that when the police conducted the raid of the apartment on 9 October 2013 he did not hide anything from them and "I was honest with the police". But both statements are untrue. When the police first asked the Tenant whether they would find any prohibited drugs on the premises his response was "a little bit of grass". The Cannabis was on the table. He did not make any disclosure about Methamphetamine until after the police searched the 3 women in the apartment, further searched the apartment and located the smaller quantity of Methamphetamine in the loungeroom. They found the larger quantity of Methamphetamine later under his mattress in his bedroom. He had not disclosed it. Each time unlawful drugs were found he told the police they were his.
This appeal was filed and served in August 2014 and previously listed for hearing on 12 November 2014, but adjourned on the Landlord's application to give the Tenant time to respond to amended grounds recently served on him. It was then listed for February 2015.
At the start of the hearing in February at 10.08 am the Tenant sought an adjournment to await his solicitor's arrival. He said he had been refused legal aid but had then retained a solicitor, Mr Cohen of Castlereagh Street, Sydney, to appear for him and Mr Cohen had agreed to appear. Ms Anniwell did a Websearch of solicitors in Castlereagh Street and found there was only one, "David Cohen". The Tenant told the Tribunal that was his solicitor's name. Ms Anniwell then contacted David Cohen's office and was told his mobile phone number. She contacted Mr Cohen on that number. He was at a Court. He said he was not acting for the Tenant. He said the Tenant was to see him about applying for legal aid for the appeal but did not do so. Then the Tenant's oral application for an adjournment was refused and reasons given.
The Tenant misled the panel when he said that Mr Cohen had agreed to appear for him.
The tenant was a person of poor credit and uncorroborated evidence by him of abstinence from ice or reduced use, or of good behaviour in the building or the community could not be relied upon. The panel is comfortably satisfied that on the balance of probabilities the Tenant is still addicted to Methamphetamine.
The Tenant did not file any affidavit or statement or other documentary evidence. His only evidence was oral evidence at the hearing. He is 58 years of age. His evidence is that the apartment was prior to his lease, let to his mother and he lived with her in the apartment from "the 90's". His mother died in 2001. He continued living in the apartment. At times he has had "many" people stay in the apartment for from 2 weeks to up to a month; more than 20 people. They were people who he said "had no place to stay".
On 27 July 2007 as a result of a raid on his present residential premises by the Police on 11 July 2006, the Sydney District Court found proved 5 counts of supplying a prohibited drug and counts of concealing a serious indictable offence of another, possession of a prohibited drug, and being the occupier of premises and allowing them to be used as drug premises.
He was sentenced to imprisonment for 12 months and that sentence was suspended upon him entering into a bond to be of good behaviour for 12 months, accept the supervision of the Probation and Parole Service, obeying all their requirements and undertake such courses in relapse prevention as required.
The Tenant's evidence is that for 3 months after his arrest on 11 July 2006 he was in gaol because bail had been refused.
A police record of 9 August 2006 shows that: "Mr Paul Lewis, date of birth 12/6/1973, a friend of the occupant, had resided with the occupant for a period of time at the location, has since been charged with similar offences. Both parties are currently bail refused."
On 3 July 2013 the Respondent was arrested for possession of a prohibited drug. He was dealt with in the Downing Centre Local Court on 21 August 2013 (less than 2 months before the raid on 9 October 2013). He was fined $800.
The Respondent testified that about 3 months prior to his arrest in July 2013 he had a problem:
"… with a young lady that stayed at my place overnight and because I found the young lady thieving from me that morning I threw her out and she went straight to the Police. I threw her out because I kept her I.D. and her bankcard to teach her a lesson, Sir, and she went straight to the Police to state that there we were doing the drugs and so forth and so on. It was true, we did have a smoke the night earlier …."
On 9 October 2013 the Respondent was charged as a result of the raid on the apartment with two counts of possess a prohibited drug and one of supply a prohibited drug, which was in fact a deemed supply because of the quantity. The drugs found in the apartment comprised 0.8 grams of Methamphetamine ("ice") in a plastic bag in the lounge room, 2.4 grams of Methamphetamine in a plastic bag under his mattress in his bedroom , and 4.1 grams of cannabis on the loungeroom table.
When the Police conducted the raid on Wednesday, 9 October 2013 to exercise a search warrant, at 8.15am 10 Police entered the apartment. The Respondent was inside the apartment and there were also three women and another man in the premises with the respondent.
The Police found in the raid in addition to the drugs referred to, in excess of 1,000 small resealable plastic bags, some of which were endorsed with a naked lady symbol, glass vials, numerous smoking pipes, bongs and glass pipes, four sets of scales, numerous balloons with the ends cut off, a box containing pipes, spoons and balloons, a bag containing drug paraphernalia, a box containing drug paraphernalia, several yellow sharps containers in various parts of the apartment (including one in linen closet) of the dimensions of about 20 cm square by 20 cm high overflowing with used syringes, and numerous used syringes. The Police also located a book "referring to glassware and parts", and a "tick book" being a book where records were kept of sales and receipt of payments.
The Police also found an illegal slingshot and ammunition for the slingshot in the apartment (bundle page 73).
The Respondent's evidence is that for three weeks prior to the exercise of the warrant on 9 October 2013 the Respondent had a Mr D'Ambrosio and his girlfriend staying with him in the spare bedroom and they whilst in the apartment both injected drugs with syringes throughout their stay. Mr D'ambrosio was on parole. The day after the raid, Mr D'Ambrosio moved out and was arrested and charged with murder.
In cross-examination the evidence of the tenant was that his last purchase of Methamphetamine was the 3.4 gram quantity and that cost him $1,000. He said his use of Methamphetamine is limited to two occasions per week. He claimed that the 3.4 grams of Methamphetamine would last him "a fair while", which he then said, "It could be a few months". But he testified that his total income is $383 per week by way of a Disability Pension and his rent to the Landlord, which is deducted from his pension, is $97 per week, so that he has only $286 per week disposable income from his pension.
When it was put to him that the figures "did not add up", he alleged that he obtains a loan twice of year from Centrelink to pay for ice. He provided no corroboration in respect of the alleged loans or the extent of his expenditure for drugs. If his evidence of the loans were true he would still have to repay the loans in addition to his rental and that would further reduce his disposable income from his pension.
In cross-examination the Tenant claimed he no longer allows other drug users to attend his premises and that it is not a safe location to take drugs. He claimed he no longer takes drugs or even uses alcohol. He said that the people who come to his apartment also do not use drugs or alcohol. He claimed that he no longer allows people to stay in his unit. The Panel does not consider that evidence reliable.