NSW Land and Housing Corporation v Kumar
[2015] NSWCATCD 111
•15 September 2015
|
New South Wales |
Case Name: | NSW Land and Housing Corporation v Kumar |
Medium Neutral Citation: | [2015] NSWCATCD 111 |
Hearing Date(s): | 30 July 2015 |
Decision Date: | 15 September 2015 |
Jurisdiction: | Consumer and Commercial Division |
Before: | C R Xuereb, General Member |
Decision: | 1. The residential tenancy agreement between the parties for the respondent to occupy the applicant’s premises at 2/3 Queen Street, Auburn NSW is terminated. |
Catchwords: | USE OF RESIDENTIAL PREMISES FOR UNLAWFUL PURPOSES - illicit drug use by tenant, occupiers and visitors - goods in custody - possession of prescribed restricted substances - military ammunition on premises - termination of residential tenancy agreement, |
Legislation Cited: | Residential Tenancies Act 2010 |
Cases Cited: | NSW Land & Housing Corporation v Raglione [2015] NSWCATAP 75 |
Category: | Principal judgment |
Parties: | NSW Land and Housing Corporation (Applicant) |
Representation: | Mr Pablo Marquez (Applicant) |
File Number(s): | SH 15/11097 |
Publication Restriction: | Nil |
REASONS FOR DECISION
APPLICATION
On 4 March 2015, NSW Land and Housing Corporation lodged an application with the Tribunal seeking orders under ss 187(1)(b), 91 and 187(1)(i) of the Residential Tenancies Act 2010 (the RTA).
In the application it was alleged that the respondent, Priti Pritika Kumar, a tenant of premises in a residential building owned or controlled by the applicant, was allowing the premises to be used as a drug house to supply, use and distribute prohibited drugs.
JURISDICTION
The respondent is a tenant of the applicant. The premises are social housing premises within the meaning of s 136 of the RTA. The Tribunal has jurisdiction to hear and determine the proceedings.
BACKGROUND
The respondent has been a tenant of the applicant since 27 October 2008. The residential tenancy agreement (the lease) was signed on 27 October 2008 and was for a term of three years and two weeks commencing on 27 October 2008 and ending on 30 November 2011. On 15 November 2011, by a notice given under s 142 of the RTA, the applicant extended the term of the lease for a fixed term of five years commencing on 14 November 2011 and ending on 30 November 2016. The lease permits no more than four persons to ordinarily live in the premises at any one time.
In the application lodged with the Tribunal, the applicant alleges that the respondent has breached the terms of the lease because she has allowed the premises to be used for illegal purposes. The applicant provided the following information to support the application for a termination order under s 91 of the RTA:
On 14 August 2014, the New South Wales Police Force executed a search warrant at the residential premises. During the search police located 14.8g of cannabis inside the premises. As a consequence, one of the occupants of the premises was charged and convicted of possessing a prohibited drug.
On 21 November 2014, police observed what was alleged to have been a drug transaction between an occupant of the premises and a visitor to the premises. As a consequence, the occupant was charged and convicted of a drug offence.
On 27 January 2015, police attended the premises and found five persons in the lounge room with drugs and drug paraphernalia. The respondent was arrested and conveyed to Auburn police station. Other occupants were also arrested. All arrested were charged with drug offences.
The application was listed for a conciliation hearing (group list) on 25 March 2015. The applicant was represented, but there was no appearance for or on behalf of the respondent. At that hearing, at the request of the applicant, the application was adjourned to a date to be fixed by the Registrar. Leave was granted to the applicant to issue a summons to NSW Police. Leave was also granted to both parties to be represented.
The matter next came before the Tribunal on 20 May 2015. The matter was listed for a 30 minute return of summons hearing at 1:15pm on that occasion, the applicant was represented and there was no appearance for on behalf of the respondent. Directions were made in relation to the filing and serving of the documents upon which each party intended to rely at the hearing. The applicant was required to file and serve its documents by 22 June 2015 and the respondent was to provide her documents to the Tribunal and to the applicant by 6 July 2015.
On the Tribunal file, there is a note by the Tribunal Member sitting that day that after the matter was dealt with and directions made and after the applicant’s representative had left the hearing room, the respondent arrived with her brother at about 1:40pm. The note records that the respondent requested that a copy of the orders made that day be emailed to her. The Tribunal file shows that the orders were posted to her at the address of the premises, as well as being emailed to two email addresses which she gave to the Tribunal Member on 20 May 2015.
The matter was listed for hearing on 30 July 2015 at 10:15am. Two hours were allocated for the hearing. Mr Pablo Marquez appeared for the applicant. There was no appearance at the hearing by or for the respondent. After hearing the evidence of the applicant, the Tribunal reserved its decision at about 12:10pm. At 1:04pm the Penrith Registry of the Tribunal received a fax from the respondent attaching a medical certificate dated 30 July 2015 stating that the respondent was suffering from gastroenteritis and would be unfit for any duties or schooling on 30 July 2015.
THE EVIDENCE
The applicant’s evidence was given by Mr Pablo Marquez who referred the Tribunal to the documentary evidence filed on behalf of the applicant in accordance with the directions made by the Tribunal on 25 May 2015. The directions require the applicant to file and serve all documents on which it intended to rely by 22 June 2015. The applicant filed its documents with the Penrith registry of the Tribunal on 19 June 2015.
The respondent was directed to provide her documentary evidence to the applicant and to the Tribunal by 6 July 2015. No documentary evidence was provided by the respondent.
Mr Marquez referred the Tribunal to the provisions of clause 7.1 of the lease which relevantly provides:
“The tenant agrees not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose”.
Clause 7.1 of the lease mirrors the provisions of s 51(1)(a) of the RTA.
The applicant contended that the respondent lived in the premises with a male named Mark Bruce Rondo. Mr Rondo has been described variously as the applicant’s de facto husband or partner. The NSW Police arrested Mr Rondo on 14 August 2014 and charged him with possession of a prohibited drug, namely 14.8g of cannabis-setiva. A police facts sheet prepared in respect of the charge indicates that Mr Rondo is currently unemployed.
The police facts in respect of the offence committed on 14 August 2014 by Mr Rondo contain the following statements (only relevant parts have been quoted):
“A search of unit 2 of 3 Queen Street, Auburn commenced about 16:21 hours police located on the living room table a clear resealable bag containing green vegetable matter.
The clear resealable bag was weighed at 14.8g and booked up as exhibit X0002838128 sealed within drug bag 722271.
A short time later the search warrant concluded. The accused was cautioned and offered the opportunity to participate in a record of interview. The following conversation was recorded in police notebook F583308.
The accused was asked about the resealable bag containing green vegetable matter located in your lounge room. The accused replied “that was mine.” The accused was asked what is the green vegetable matter. The accused replied “Marijuana, there is half an ounce. “The accused was asked what was his intentions with it. The accused replied “Personal use.” The accused was asked how much did you pay for it. The accused replied “$180”.”
The documents produced by the NSW Police Force under a subpoena issued by the applicant indicated that during the execution of the search warrant on 14 August 2015, 11 items were seized. They included the resealable bag containing the green vegetable matter weighing 14.8g, a set of scales, $130.00 in cash, a grey metal lock box, a handmade plastic water bong, three mobile telephones, an iPad, a Nikon camera and some Suboxone film.
In relation to the offence allegedly committed on 21 November 2014, the police facts indicate that Mr Rondo exited his home address of 2/3 Queen Street, Auburn and walked about 100 metres to Marion Street, Auburn where he met with another male, Rajeev Wagle. After observing what appeared to have been an exchange of cash, Mr Rondo was subjected to a search by police. A small piece of aluminium foil containing cannabis was located in Mr Rondo’s underwear. Mr Rondo was arrested.
The police facts indicate that Mr Rondo participated in a written record of interview where he made full admissions to possession and knowledge of the prohibited drug. Mr Rondo stated that the cannabis was to “smoke it”. The cannabis and packaging had a gross weight of 1.36g.
In respect of the offence allegedly committed on 27 January 2015, an email sent by a plain clothes senior constable attached to Flemington detectives to a representative of the applicant on 29 January 2015 contains the following information (only relevant parts have been quoted):
“Unit 2/3 Queen Street, Auburn is currently occupied by Priti Kumar and Mark Rondo who are in a de facto relationship. About 9:15 PM on Tuesday, 27 January 2015 Auburn detectives attended the address and as a result observed five persons in the front lounge room next to the front entrance door all with drugs and drug paraphernalia. As a result the occupier Priti Kumar was arrested and conveyed to Auburn police station where she was interviewed. She provided Police with a signed notebook statement making admissions to administering a prescribed drug.
On the same evening a female named Seda Ilbay was arrested and participated in a notebook interview where she made full admissions to administering the drug “ICE” inside the residence. She was charged and appeared in Burwood Local Court on 28 January 2015 where she pleaded guilty and received a $1000 fine. As of 20 January 2015 she has listed 2/3 Queen Street, Auburn as her primary residence and is therefore bailed to that location until 10 February 2015. At the same time a number of Middle Eastern males at the location have informed police that they stay at the location and have done so for the past three or four weeks.
Police spoke to the males inside the premises who stated that they were also residing at the address. One of the males was Mohammed Nabi Rezaee who police later identified through checks was an illegal immigrant. Rezaee stated that he was living underneath the staircase of unit 2.
On Wednesday, 28 January 2015 Auburn detectives observed a number of persons entering and leaving the premises for approximately 30 minutes. Detectives then approached the front door and again observed drug paraphernalia inside the premises along with another two males. Another two males were seen to come out of the location. All persons were searched and had on their person drug paraphernalia. All persons are known to police in relation to drug use.
As a result of the above, police are concerned for the other occupants in the surrounding community who have suffered and continue to suffer with drug-related crime due to the unit 2/3 Queen Street, Auburn being used and operated as a drug house to supply, use and distribute prohibited drugs. Police strongly request the assistance of your office and the Department of Housing to progress through the correct channels in order to come to a resolution of eviction of the occupants of 2/3 Queen Street, Auburn.”
On 13 February 2015, the same plain clothes Senior Constable attached to Flemington detectives sent an email to a representative of the applicant to inform the applicant that on 12 February 2015 police attended 2/3 Queen Street Auburn in relation to drug activity. A male who did not reside at the address had a drug overdose. The police COPS record in relation to that event indicates that a passerby noticed that a male person inside the unit at 2/3 Queen Street, Auburn was unconscious and alerted police. Two police constables intended a short time later when they found a male, Fadel Abbas, unconscious on the floor of the unit and not breathing. The police constables commenced CPR and requested urgent ambulance assistance. The ambulance and additional police attended a short time later. The ambulance officers administered two shots of Narcan and Mr Abbas regained consciousness. Mr Abbas was treated by paramedics for a further 10 minutes to stabilise him and to monitor the effects of the drug Narcan on him.
Other unnamed persons at the location were asked by police what substance Mr Abbas had taken. Police were informed that Mr Abbas had heated Fentonil patches in a spoon and injected the drug into his system.
Mr Abbas was requested both by the ambulance officers and the police to attend hospital for further treatment, but Mr Abbas declined any further treatment.
Police discovered 14.2g of cannabis in a bum bag owned by Mr Abbas. The police facts record that Mr Abbas admitted to possessing the cannabis.
The police COPS record indicates that due to the fact that Mr Abbas was not breathing for two to three minutes and that he was clinically dead before being revived by the ambulance officers, police considered it inappropriate to charge Mr Abbas.
Another episode of drug-related offences occurred on 14 February 2015. The police facts indicate that on Saturday, 14 February 2015 at about 4:00pm, the police attended Queen Street, Auburn where they had conducted surveillance of 3 Queen Street, Auburn for about two hours. At about 6:00pm on 14 February 2015, police knocked on the front door of 2/3 Queen Street, Auburn and were greeted by a person named Zizo Summer. Police identified themselves and requested to speak with Mr Mark Rondo. The police were informed that Mr Rondo was not at home.
A short time later, police observed Mr Mark Rondo to be walking into the driveway of 3 Queen Street with Priti Kumar. Mr Rondo was placed under arrest for an outstanding warrant.
Police then searched Mr Rondo and Ms Kumar. Police located on Ms Kumar a taxation invoice, a New South Wales driver licence in the name of Maher Lone, and opened blister pack of eight tablets of Loxalate Escitalopram (oxalate) and six empty packets of Duragesic 100 fentanyl 100. Priti Kumar was placed under arrest.
Later that evening, police executed a further search warrant at the premises with Mr Rondo, Ms Kumar and Zizo Summer all present. During the search, police located a roll of foil, including cut up foil pieces and three ice pipes. Also located at the premises were a bayonet, an RMS vehicle registration certificate in the name of Rami El Akkoumi and a birth certificate in name of Cjay Magro. Furthermore, in the kitchen the police located a container containing lithium tablets which had a prescription sticker ripped off. A blister pack containing 10 tablets of Tramadol were found in Mr Rondo’s bedroom.
The garage belonging to unit 2 was also searched. Police found a military ammunition container filled with assorted ammunition.
Zizo Summer was placed under arrest later that evening. Mr Summer was released from police custody without charge after being conveyed to Auburn police station.
Ms Kumar was charged with goods in personal custody suspected of being stolen and was also charged with possession of a prescribed restricted substance.
Another incident occurred at about 4:30pm on Friday, 17 April 2015 in the vicinity of the premises. Police, conducting proactive patrols of the Auburn area, observed three male persons congregating around the front door of the unit block at 3 Queen Street Auburn. The Police COPS entry indicates that the three male persons admitted they did not live in the unit block. The police were of the view that all three males were affected by an unknown substance as their eyes were glazed and their words were slow and sluggish. Two of the three males had numerous visible signs of previous drug use on their arms. One of the males was in possession of three Tramadol tablets and a school book with a name on it which was not his own. That person was charged with possessing a prescribed restricted substance and also charged with larceny. All three males were given a move on direction by the police. That direction was complied with. The Police COPS entry records that the police were of the opinion that the three males were at the location for the purpose of purchasing prohibited drugs.
On 27 April 2015, police conducting unrelated duties were flagged down by a member of the public as a person was found to be unconscious in a toilet block attached to some shops in Rawson Street, Auburn. The unconscious person was, in fact, deceased. The deceased was removed from the toilet cubicle and searched. He was found with a syringe in his right hand and several syringes were found lying around his body inside the cubicle. There were also syringes located on the basin inside the cubicle. The deceased was identified to be Fadel Abbas, the person who was found unconscious on 12 February 2015 at the subject premises – 2/3 Queen Street, Auburn.
The criminal history record of Priti Kumar discloses that on 14 February 2015 she was found guilty of two offences – goods in custody and possession of a prescribed restricted substance. On both findings of guilt she was given the benefit of a conditional discharge under s 10 of the Crimes (Sentencing Procedure) Act 1999. Under s 10, the court found Ms Kumar guilty of the offences but, nevertheless, directed that the relevant charges be dismissed on condition that Ms Kumar entered into a good behaviour bond for a term of nine months.
The criminal history record of Mark Rondo to 24 April 2015 is extensive. It comprises 14 pages. A snap shot of his criminal history since August 2014 includes two convictions for possessing drugs (15 December 2014 at Burwood Local Court and 12 February 2015 at Burwood Local Court) and a further charge of possession of a prohibited drug which had been remanded to Parramatta Drug Court on 30 April 2015. There is a shoplifting charge which was remanded to Parramatta Drug Court on 30 April 2015. There is also a charge of escaping police custody which has also been remanded to Parramatta Drug Court on 30 April 2015. As the criminal history record does not detail outcomes after 24 April 2015, the Tribunal is not apprised of whether or not convictions have been recorded against Mr Rondo in respect to matters which have been remanded to Parramatta Drug Court and, if so, what penalties were imposed. However, the record does show that bail was refused at Parramatta Drug Court on 15 February 2015 and bail was also refused by Parramatta Local Court on 16 March 2015 in respect of a shoplifting charge.
Mr Marquez addressed the Tribunal in respect of the requirements imposed upon the Tribunal under s 152 of the RTA to have regard to the matters set out in subclauses (a)–(e) of s 152(1).
Mr Marquez drew the Tribunal’s attention to the Appeal Panel’s decision in NSW Land & Housing Corporation v Raglione [2015] NSWCATAP 75.
The applicant submitted that persons affected by drugs are likely to cause discomfort and possible injury to neighbours and others in the vicinity. Mr Marquez invited the Tribunal to consider the Appeal Panel’s findings in Raglione in relation to the effect that the drug breaches have on neighbours and their children. Mr Marquez pointed out that apart from the instant physical danger to neighbours, there is a prospect that growing up in a culture of drug taking may encourage young persons to experiment and with a likelihood of becoming addicted later on.
The applicant also contends that the breach of the lease was a serious one and that having regard to the multiple charges on multiple occasions to multiple occupants and visitors to the premises a failure to terminate the tenancy would subject neighbouring residents and any other persons in the vicinity to unacceptable risks.
Mr Marquez informed the Tribunal that a search of the applicant’s records for other tenancies within the building show that the other units were occupied variously by single people, couples and families, including those with children under the age of 16 years. He drew to the Tribunal’s attention the episode which occurred on Friday, 17 April 2015 at about 4:30pm when three males were congregating in the entrance area of the unit block. Mr Marquez pointed out that this episode would have taken place at about the time that children would be returning home from school.
The unfortunate death of Mr Abbas was cited by Mr Marquez as being a indication of the serious adverse effects that the tenancy has had on persons. Mr Marquez submitted that if a termination order is not made, the premises would continue to be used for the purposes of drug administration. Any persons participating in drug taking at the premises may suffer the same fate as Mr Abbas if the drug habit is facilitated by having these premises available for the illegal activity.
Mr Marquez suggested that a clear message must be communicated to the community that such serious illegal activity will not be tolerated in a public resource for which thousands of people seeking social housing accommodation are on a waiting list.
The applicant seeks immediate possession. The evidence given was that the respondent suffers no disability and is not precluded from obtaining accommodation the private sector.
It was pointed out by the applicant that the respondent has failed to put on any evidence to put her position forward.
After the Tribunal’s decision was reserved the applicant forwarded further documents to the Penrith Registry of the Tribunal for the Tribunal’s consideration. The additional material has not been considered by the Tribunal in the making of its determination. To have considered the late submission from the applicant would have denied the respondent procedural fairness as the respondent would not have been given the opportunity to be heard in relation to the additional material submitted.
RELEVANT LEGISLATION
Residential Tenancies Act 2010
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 1985http://143.119.201.4/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D1985%20AND%20no%3D226&nohits=y, 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.
Residential Tenancies Act 2010
187 Orders that may be made by Tribunal
(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders:
…
(b) an order that requires an action in performance of a residential tenancy agreement,
…
(i) a termination order or an order for the possession of premises,
Drug Misuse and Trafficking Act 1985
10 Possession of prohibited drugs
(1) A person who has a prohibited drug in his or her possession is guilty of an offence.
Crimes Act 1900
527C Persons unlawfully in possession of property
(1) Any person who:
(a) has any thing in his or her custody,
(b) has any thing in the custody of another person,
(c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or
(d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing,
which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court:
(a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or
(b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both.
Poisons and Therapeutic Goods Act 1966
16 Offences relating to prescribed restricted substances
(1) A person shall not have in his or her possession or attempt to obtain possession of a prescribed restricted substance unless:
(a) the person is a medical practitioner, pharmacist, dentist or veterinary practitioner, and the person obtains possession or attempts to obtain possession of it in the lawful practice of the person’s profession as such,
(a1) the person is a nurse practitioner who is authorised under section 17A to possess the substance and the person obtains possession or attempts to obtain possession of it in the lawful practice of his or her profession,
(a2) the person is an optometrist who is authorised under section 17B to possess the substance and the person obtains possession or attempts to obtain possession of it in the lawful practice of his or her profession,
(a3) the person is a midwife practitioner who is authorised under section 17A to possess the substance and the person obtains possession or attempts to obtain possession of it in the lawful practice of his or her profession,
(a4) the person is a podiatrist who is authorised under section 17C to possess the substance and the person obtains possession or attempts to obtain possession of it in the lawful practice of his or her profession,
(b) the person obtains possession or attempts to obtain possession of it on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist, optometrist, podiatrist or veterinary practitioner for its supply to the person,
(c) the person is a person or belongs to a class of persons authorised by the Director-General for the purposes of section 10 (4) (c),
(d) the person is a person authorised in writing by the Director-General to obtain possession of the prescribed restricted substance for the purposes of the person’s profession or employment and obtains, or attempts to obtain, as the case may be, possession of the prescribed restricted substance in accordance with any conditions subject to which the person is so authorised,
(d1) the person is a person who has the care of, or is assisting in the care of, another person (for or to whom the supply of the substance has been authorised by the prescription of a medical practitioner, nurse practitioner, midwife practitioner, optometrist, podiatrist or dentist) and has the prescribed restricted substance in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the substance to the other person in accordance with that prescription, or
(e) the person is licensed or otherwise authorised by this Act or the regulations to obtain possession of the substance for the purposes of his or her profession or employment.
Maximum penalty:
(a) for an offence relating to a prescribed restricted substance that is an anabolic or androgenic steroidal agent, 20 penalty units or imprisonment for 2 years, or both, and
(b) for an offence relating to a prescribed restricted substance other than an anabolic or androgenic steroidal agent, 20 penalty units or imprisonment for 6 months, or both.
Crimes (Sentencing Procedure) Act 1999
10 Dismissal of charges and conditional discharge of offender
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.
(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.
(2B) Subsection (1) (c) is subject to Part 8C.
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
(4) An order under this section has the same effect as a conviction:
(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996http://143.119.201.4/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D1996%20AND%20no%3D115&nohits=y, and
(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.
(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
DETERMINATION
Since at least 14 August 2014, the respondent has allowed the premises occupied by her and, at least on a regular basis, occupied by her de facto husband or partner, Mark Rondo, to be used for the purposes of drug taking in contravention of a term of the lease and various laws aimed at curtailing illicit drug use.
The offence committed on 14 August 2014 by Mr Rondo resulted in a conviction. The offence committed by Mr Rondo on 21 November 2014 is still before the courts, having been remanded to Parramatta Drug Court.
The offence committed by the respondent, Priti Kumar, on 27 January 2015 resulted in her arrest. Although the applicant contends in its application that the respondent was arrested with other occupants on 27 January 2015 and all arrested were charged with drug offences, the respondent’s criminal history record discloses only a charge for the two offences committed by her on 14 February 2015. Notwithstanding the absence of a finding of guilt in respect of this episode, the police records indicate that Ms Kumar signed a notebook statement making admissions to administering a prescribed drug on 27 January 2015.
The incident which occurred on 13 January 2015 in which Fadel Abbas was found unconscious in the premises makes it clear that the premises have been used for the purposes of drug taking.
Illegal drugs were a feature of the incident on 14 February 2015 which resulted in the respondent’s arrest and subsequent charge. The garage belonging to unit 2 was found to contain military ammunition.
The attendance of three persons, reportedly under the influence of an unknown substance, at the block of units on Friday, 17 April 2015 is consistent with illicit drug activity occurring in unit 2, albeit circumstantial in evidentiary terms.
The Tribunal is comfortably satisfied on the balance of probabilities that the premises have been used for unlawful purposes namely illegal drug taking, the storage of stolen goods and the storage of military ammunition. The Tribunal is also comfortably satisfied on the balance of probabilities that the commission of the offences has been carried out on occasions by either the tenant, Priti Kumar, or Mark Rondo, who is a person jointly occupying the residential premises with Ms Kumar. The Tribunal is further comfortably satisfied that either Ms Kumar or Mr Rondo has intentionally or recklessly caused or permitted other persons to use the premises for the purposes of illegal drug taking.
The Tribunal is satisfied that the unlawful purposes for which the respondent or her occupant have allowed the premises to be used is sufficient to justify a termination of the lease. There is no basis upon which the Tribunal can find that the tenancy should be preserved. There is a real risk that the unlawful drug activity will continue unless these premises are removed from the availability of persons connected with Mr Rondo and Ms Kumar.
The Tribunal makes a finding under section 91 (1) (b) of the RTA that the respondent and her occupant, Mr Mark Rondo, have intentionally or recklessly caused or permitted the use of the residential premises for unlawful purposes and that the uses are sufficient to justify termination of the lease.
It is clear from evidence that there have been occasions on which persons within the premises had a prohibited drug in his or her possession. Section 10 of the Drug Misuse and Trafficking Act 1985 makes such possession an offence.
Ms Kumar was charged and found guilty of an offence under s 527C (1)(a) of the Crimes Act 1900. The offence occurred on the premises.
Ms Priti was also found guilty of an offence under s 16(1) of the Poisons and Therapeutic Goods Act 1966. The offence occurred on the premises.
The evidence, taken in totality, paints a picture of the premises being used on a regular basis as a “drug house” by persons with drug habits to administer illegal drugs to themselves.
Having determined that the elements section 91 (1) (b) have been made out, the Tribunal is required to consider the matters set out in section 91 (2).
The nature of the unlawful uses have been set out in the police evidence and the submissions made by Mr Marquez. Offences breaching the drug laws are offences which the community abhors. Facilitating illegal drug use is to be condemned at every level. This is more so in this case as the tenant and her occupant have allowed the publicly owned premises leased to them for residential accommodation to be used by persons as a safe haven for the administration of prohibited substances. In short, they have allowed a publicly owned building to be used for illegal purposes.
The unlawful use of been taking place since at least August 2014. Illicit drug use is notoriously an activity which is done in secrecy. Having regard to the criminal history of Mr Rondo which indicates drug offences going back to the late 1990s, it is implausible that the unlawful use of the premises commenced only in August 2014. Nevertheless, even basing its determination solely on the drug activity which has occurred since August 2014, the Tribunal is satisfied that the absence of the detection of any previous unlawful uses is not a bar to making a termination order in respect of the breaches since August 2014 which have now become apparent to the applicant.
The Tribunal has considered the fact that the tenancy has existed since October 2008. Apparently, the previous history of the tenant is, at the very least, satisfactory. That said, the Tribunal’s remarks made in the preceding paragraph have similar application. It is implausible that the illegal activities commenced only in August 2014, but, even if they did, the current unlawful uses, if only committed since August 2014, still warrant a termination of the lease.
The Tribunal has considered the elements required under section 152 of the RTA.
The serious adverse effects on neighbouring residents persons have already been commented upon. The risk to neighbours by becoming victims of violence or becoming witnesses to an acceptable habits or being drawn into the insidious vice of drug taking is too great to allow the tenancy to continue.
The breaches of the lease are serious. Given the behaviour or the likely behaviour of both Ms Kumar and Mr Rondo, a failure to terminate the lease will subject persons to unreasonable risk. Drug takers, under the influence of drugs, are notorious for irrational behaviour and sometimes violence. Having regard to the fact that a broad spectrum of residents, including children, reside within the complex, it is not appropriate for those persons to be placed at any risk by the tenant, Mr Rondo or visitors to the premises.
The Tribunal has already noted the landlord’s responsibility to its other tenants as being a significant factor which bears upon whether or not a termination order should be made. On balance, the Tribunal is of the opinion that the termination order should be made.
The Tribunal has already considered the history of the tenancy.
Insufficient evidence has been adduced to enable the Tribunal to make a finding under s 91(1)(a) of the RTA. The Tribunal is not satisfied that there is sufficient evidence to enable it to make a determination of the premises are used for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug.
The respondent’s failure to present any evidence to Tribunal or to attend any of the hearings is consistent with the respondent’s disregard for the privilege which has been afforded to her in being granted social housing.
ORDERS
(1)The residential tenancy agreement between the parties for the respondent to occupy the applicant’s premises at 2/3 Queen Street, Auburn NSW is terminated.
(2)The respondent must give possession of the premises to the applicant immediately.
(3)If the respondent does not comply with order 2, the respondent must pay to the applicant an occupation to be calculated in accordance with s 123 (2) of the Residential Tenancies Act 2010.
(4)Within 60 days of obtaining possession, the applicant can relist the application to determine the amount of the occupation fee owing.
C R Xuereb
General Member
Civil and Administrative Tribunal of New South Wales
15 September 2015
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
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