New South Wales Consolidated Acts

DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 23A

23A Offences with respect to enhanced indoor cultivation of prohibited plants in presence of children

(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.

(2) A person who-

(a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants by enhanced indoor means which is not less than the commercial quantity applicable to those plants, 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.

(3) A person who-

(a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is-

(i) not less than the small quantity applicable to the prohibited plants, and

(ii) less than the commercial quantity applicable to those prohibited plants, and

(b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose, and

(c) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(4) If, on the trial of a person for an offence under subsection (2), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of-

(a) an offence under subsection (3), if the jury is satisfied that the person contravened subsection (3), or

(b) an offence under subsection (1), if the jury is not satisfied that the person contravened subsection (3), but is satisfied that the person contravened subsection (1),

and the person is liable to punishment accordingly.

(5) If, on the trial of a person for an offence under subsection (3), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person is liable to punishment accordingly.

(6) 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.

(7) If, on the trial of a person for an offence under subsection (1), (2) or (3), the jury-

(a) is not satisfied that a child was exposed to the cultivation of a prohibited plant by enhanced indoor means, or to substances being stored for use in such a cultivation process, or

(b) is satisfied that the defence referred to in subsection (6) has been made out,

the jury may acquit the person of the offence charged and find the person guilty of an offence under section 23 (1) (a), (2) (a) or (1A), respectively, and the person is liable to punishment accordingly.

(8) In this section,
"child" means a person who is under the age of 16 years.