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Allowing the Use of Premises as a Drug Premises where a Child is Exposed

Allowing the use of premises as a drug premises where a child is exposed is an offence under section 36Y(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 14 months in prison for a first offence or 6 years in prison for a second or subsequent offence.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were the owner or occupier of a premises
  2. You allowed the premises to be used as a drug premises
  3. You knew the premises was being used as a drug premises
  4. You knew a child had access to the premises, and
  5. As a result of the child’s access, he or she was exposed to a prohibited drug or plant, or the drug supply process, or equipment capable of being used to administer a prohibited drug.

A ‘drug premises’ is any premises used for:

  1. The unlawful supply or manufacture of prohibited drugs, or
  2. The unlawful commercial cultivation of prohibited plants by enhanced indoor means.

A ‘prohibited drug’ does not include cannabis leaf, oil or resin.

‘Commercial cultivation’ is where the cultivation relates to:

  1. At least a commercial quantity of prohibited plants, or
  2. At least a small quantity but less than the commercial quantity of prohibited plants where the plants or their products are intended for sale.

Cultivation is ‘by enhanced indoor means’ if it occurs:

  1. Inside a building or structure, and
  2. Involves nurturing the plant in nutrient-enriched water, and/or applying an artificial light or heat source, and/or suspending the plant’s roots and spraying them with nutrient solution.

A ‘child’ is a person under the age of 16 years.

It is not necessary for the prosecution to prove that prohibited drugs or plants were actually found on the premises.

You are not guilty of the offence if you establish to the court ‘on the balance of probabilities’ that the child’s exposure did not endanger his or her health or safety.

Duress and necessity are defences to the charge.

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