Drugs and the law - Hot Topics 59 - Find Legal Answers

Section 23(1A) prohibits the ‘cultivation by enhancedindoor means’ of five or more plants for a commercialpurpose. ‘Commercial purpose’ means intending to sellor believing that another person intended to sell – section23(6). [Note that the offence of (outdoor) cultivation ofcannabis in s 23(1) does not involve any requirement toprove a commercial purpose.]So the offence requires the cultivation to be:> inside a building or structure and> involve growing the plant in nutrient enriched water orapplying artificial light or heat or suspending the rootsand spraying them with nutrient solution and> involve five or more plants and> be done with the intention to sell (or the beliefthat another person intends to sell) the cannabisproduced.Offences under section 23(1A) are wholly indictable.They must be dealt with in the District Court.offence categoriesThere are now two entries for cannabis as ‘prohibitedplants’ in the Schedule (‘cannabis cultivated by enhancedindoor means’ and ‘cannabis cultivated by any othermeans’). The relevant offence categories in the Scheduleare as follows:tRaffickableqUantitysmallqUantityinDictableqUantitycommeRcialqUantitylaRGecommeRcialqUantityhydro – 5 50 50 200outdoor – 5 50 250 1000penaltiesCultivation of less than the ‘small quantity’ of hydroponicplants (that is, less than 5 plants) is treated the same asfor outdoor cannabis plants. If dealt with summarily, themaximum penalty is $5500 and two years imprisonment(s 30(3)) or $220 000 or ten years if dealt with onindictment (s 32(1)(h)).The maximum penalty for cultivation of 5 to 49hydroponic plants is $385 000 and 15 years imprisonment(s 33(2)(b)). For cultivation of 50 or more hydroponicplants, the maximum penalty is also $385 000 and 15years imprisonment (s 33(2)(b)).For 200 or more hydroponic plants, a ‘large commercialquantity’, the maximum penalty is $550 000 and 20years imprisonment (s 33(3)(b)).exposing a child to indoor cultivationSection 23A(1) makes it an offence to cultivate ‘a plant’(note the singular) by enhanced indoor means and‘expose a child’ to the cultivation process or to substancesstored for use in cultivation.The maximum penalty for an exposing a child offenceinvolving one to four plants is a fine of $11 000 andtwo years imprisonment if dealt with summarily, or a$264 000 fine and 12 years imprisonment if heard onindictment.The maximum penalty for an exposing a child offencethat involves five to 199 plants is a $462 000 fine and18 years imprisonment. The maximum penalty for anexposing a child offence that involves 200 or more plantsis a $660 000 fine and 24 years imprisonment. Theseoffences are wholly indictable.It is a defence if the defendant can prove that theexposure did not endanger the health and safety of thechild. A child is a person under 16 for the purposes ofthese provisions.ManufacTuring drugsIt is an offence to manufacture, or to take part in themanufacture of, a prohibited drug, under section 24.The maximum penalty for manufacture of a prohibiteddrug depends on the quantity involved, with the samepenalties applying as for supply offences involvingcomparable amounts.The maximum penalty for manufacturing an indictablequantity of a drug is a $220 000 fine and 15 yearsimprisonment.For manufacturing a quantity of drugs in the commercialrange, the maximum penalty is a $385 000 fine and 20years jail, and for a large commercial quantity, fines of$550 000 and life imprisonment.possession of precursorsIt is an offence under section 24A to possess a ‘precursor’intended to be used in the manufacture of a prohibiteddrug. Substances defined as precursors are listed inSchedules 1 and 2 Drug Misuse and Trafficking Regulation2006 (NSW). The Regulation also provides that, forlegitimate uses, records must be kept for any storage orsupply of precursors, including an ‘end user certificate’which includes the name and address and proof ofidentity of the end user.The maximum penalty for this offence is a $220 000 fineand/or ten years imprisonment.other offences 13