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Cultivating Cannabis Plants by Enhanced Indoor Means in the Presence of Children

Cultivating cannabis plants by enhanced indoor means in the presence of children is an offence under section 23A(1) and (2) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of:

  1. 12 years in prison for less than 50 plants if the case is finalised in a higher court, such as the District Court, or 2 years in prison if it is finalised in the Local Court
  2. 18 years in prison for 50 to 199 plants, or
  3. 24 years in prison for 200 plants or more.

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

  1. You cultivated a plant, or you knowingly took part in the cultivation of a plant
  2. The plant was a cannabis plant
  3. The cultivation occurred by enhanced indoor means, and
  4. You exposed a child to the cultivation process, or to substances being stored for use in the cultivation process.

‘Cultivating’ includes sowing or scattering seeds, planting, growing, tending, nurturing or harvesting.

You ‘knowingly took part in’ cultivation if you:

  1. Took or participated in any step of the cultivation process or caused any such step to be taken
  2. Provided or arranged finance for any step in the cultivation process, or
  3. Provided the premises for any step in the cultivation process, or suffered or permitted any such step to be taken in a premises for which you were the owner, lessee, occupier or manager.

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

  1. Inside a building or structure, and
  2. Involves one or more of the following:

(a) The nurture of the plant in nutrient-enriched water

(b) The application of an artificial light or heat source

(c) Suspending the plant’s roots and spraying them with nutrient solution.

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

A defence to the charge is that the exposure did not endanger the health or safety of the child.

Other defences to the charge include duress and necessity.

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