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Manufacturing or Producing Prohibited Drugs in the Presence of Children

Manufacturing or producing prohibited drugs in the presence of children is an offence under section 24(1A) and (2A) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of:

  1. 18 years in prison for less than a commercial quantity if the case is finalised in a higher court, such as the District Court, or 2 years in prison if the case is finalised in the Local Court.
  1. 25 years in prison for at least a commercial quantity but less a large commercial quantity, or
  1. Life in prison for a large commercial quantity.

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

  1. You manufactured or produced a substance, or you knowingly took part in the manufacture or production of a substance
  2. The substance was a prohibited drug, and
  3. You exposed a child to the cultivation process, or to substances being stored for use in the cultivation process.

The commercial quantities for frequently prosecuted prohibited drugs are:

  • 0.5 grams of LSD
  • 125 grams of MDMA, and
  • 250 grams of cocaine, heroin or amphetamine.

The large commercial quantities for these drugs are:

  • 2 grams of LSD
  • 500 grams of MDMA, and
  • 1 kilogram of cocaine, heroin or amphetamine.

‘Manufacturing’ a prohibited drug includes the process of extracting or refining it.

‘Producing’ a prohibited drug refers to the actual production process.

‘Knowingly taking part in’ the manufacturing or production process means:

  1. Taking, or participating, in any step of the process, or causing any such step to be taken
  2. Providing or arranging finance for any such step, or
  3. Providing the premises for any such step, or suffering or permitting any such step to be taken in a premises for which you are the owner, lessee, occupier or manager.

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

You are not guilty if you did not have the required knowledge that you were manufacturing or producing a prohibited drug, or if you had a valid licence, permit or authorisation to manufacture or produce the drug, or if the child’s exposure did not endanger his or her health or safety.

Legal defences to the charge include duress and necessity.

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