What the law states
Section 23A of the Drug Misuse and Trafficking Act 1985 (NSW) states that:
(1) A person who:
(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant by enhanced indoor means, and
(b) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,
is guilty of an offence.
There are different offences for different quantities of drugs. The reference in this offence to children is children under 16 years of age.
Example of this offence
A common example of this is cultivating prohibited plants whilst your 6 year old child chases its sibling through the rows of plants.
In which court will my matter be heard?
Offences with respect to enhanced indoor cultivation of prohibited plants in presence of children fall under Part 2, Division 2 of the Drug Misuse and Trafficking Act 1985 (NSW). This means that these offences are considered indictable offences, and are heard in the District or Supreme Court.
Indictable offences such as that mentioned in subsection (1) can be dealt with summarily (in the local court) unless the prosecution elects otherwise. This is possible only if the quantity of the drug is not more than the small quantity specified in Schedule 1, Column 2 of the Drug Misuse and Trafficking Act 1985 (NSW). The quantity varies for each type of drug. Furthermore, if the amount is not more than the indictable quantity, it can also be dealt with summarily.
For the quantities of each drug and the penalties they incur, click here.
Defences
Defences to offences with respect to enhanced indoor cultivation of prohibited plants in the presence of children include duress and necessity. Also, it is a defence to a prosecution for an offence under subsection (1), (2) or (3) if the defendant establishes that the exposure of the child to the prohibited plant cultivation process, or to substances being stored for use in that process, did not endanger the health or safety of the child.
Penalties
With regards to the offence of using enhanced indoor means to cultivate prohibited plants in the presence of children, the maximum penalty is $264,000 or 12 years imprisonment or both.
With regards to the offences where the quantity of drugs is not less than commercial quantity OR not less than small quantity but less than commercial quantity, the maximum penalty is $462,000, or imprisonment for 18 years or both.
How can Prime Lawyers help you?
If you have been charged with this offence, it is important that you obtain legal representation, considering the severity of the possible penalties. The criminal lawyers at Prime are experienced in dealing with drug offences and will be able to assist you with your matter, fighting vigorously to secure the best result for you.