Hydroponic plants

Drug Misuse and Trafficking Amendment
(Hydroponic Cultivation) Act 2006

(Commencement: 20 June 2006)

Definition of hydro plant

The Act refers to “cultivation by enhanced indoor means”. This is defined in s3 to be cultivation that occurs:

• “inside a building or structure” and

• involves the nurture of the plant in nutrient enriched water or application of artificial light or heat or suspending the roots and spraying them with nutrient solution.

New Offences

The new offence of cultivating hydro plants is contained in s23(1A), which prohibits

• “cultivation by enhanced indoor means”

• of 5 or more plants

• for a “commercial purpose”

“Commercial purpose” means intending to sell or believing that another person intended to sell – s23(6). [Note that the offence of (outdoor) cultivation of cannabis in s23(1) does not involve any requirement to prove a commercial purpose.]

So the new offence requires the cultivation to be:

• inside a building or structure and

• involve growing the plant in nutrient enriched water or applying artificial light or heat or suspending the roots and spraying them with nutrient solution. and

• involve 5 or more plants and

• be done with the intention to sell (or the belief that another person intends to sell) the cannabis produced.

Offences under s23(1A) are wholly indictable.

Offence categories

There are now two entries for cannabis as “prohibited plants” in the Schedule (“cannabis cultivated by enhanced indoor means” and “cannabis cultivated by any other means”). The relevant offence categories in the Schedule are as follows:

Penalties

There is no change in penalty for less than the “small quantity” of hydro plants (that is, less than 5 plants). They are treated the same as outdoor cannabis plants. If dealt with summarily, the maximum penalty is $5,500 and 2 years imprisonment (s30(3)) or $220,000 or 10 years if dealt with on indictment (s32(1)(h)).

The maximum penalty for cultivation of 5 to 49 hydro plants is $385,000 and 15 years imprisonment (s33(2)(b)). For cultivation of 50 or more hydro plants, the maximum penalty is also $385,000 and 15 years imprisonment (s33(2)(b)).

For 200 or more hydro plants, a “large commercial quantity”, the maximum penalty is $550,000 and 20 years imprisonment (s33(3)(b)).

The following Table summarises the offence categories and penalty ranges for hydro cultivation.

** Table 1: summary – unless prosecution or defence elect to hear on indictment
* Table 2: summary – unless prosecution elect to hear on indictment.

Some Quirks

Awkwardly, and perhaps unintentionally, the boundaries of the penalty categories differ between hydro cannabis and outdoor cannabis, with an overlap where the number is exactly the small quantity.

For both outdoor and hydro cannabis, the small number of plants is 5. For cannabis cultivation, the least serious category of offence involves “not more than” the small quantity (that is, 5 or less) – s23(1), with the penalty set in s30(1). The same section applies to hydroponically grown cannabis. Cultivating “not more than” the small quantity of hydro plants is also an offence under s23(1). The penalty range is also set under s30(1). It is a Table 2 offence which would be heard in the Local Court and the maximum penalty available is a $5,500 fine and 2 years imprisonment.

But the new provision for hydro cultivation – s23(1A) – applies to “not less than” the small quantity. That is, 5 or more plants (up to 49), which attracts a maximum penalty of a fine of $385,000 and 15 years imprisonment, and is wholly indictable.

So cultivating exactly 5 hydro plants amounts to an offence under both s23(1) and s23(1A).

The disjuncture is probably compounded by the alternative verdict provisions in s23(1B). This subsection would permit a jury in a trial on a charge under s23(1A) to enter an alternative verdict of guilty under s23(1) - the general cultivation provision - if the jury is not satisfied that the number of hydro plants is “equal to or more than” the small quantity. In other words, where the number of plants is 5 or more.

In the case of a trial under s23(1A) where the exact number of hydro plants is 5, a jury could be properly instructed that if they are sufficiently satisfied that the number of hydro plants is 5, they should enter verdict of guilty under s23(1A). The same jury could also be properly instructed that, if identically satisfied, they could enter an alternative verdict under s23(1).

Other changes

“Exposing a child”

The amending Act creates a new aggravated form of offence.

Section 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 substances stored for use in cultivation.

Section 23A (2) is the same offence except involving a commercial quantity or more (ie 50 or more) plants, with a higher maximum penalty. Section 23A(3) is the same offence but applies where the number of plants is between 5 and 49. Both s23A(2) and s23A(3) offences are wholly indictable.

The maximum penalty for an offence under s23A(1) (that is, involving one to 4 plants) is a fine of $11,000 and 2 years imprisonment if dealt with summarily (s31(3)) or a $264,000 fine and 12 years imprisonment if heard on indictment (s33AD(2)). This is a Table 2 offence (s30).

The maximum penalty for an offence under s23A(2) or (3) that involves 5 to 199 plants is a $462,000 fine and 18 years imprisonment (s33AD(3)).

The maximum penalty for an offence under s23A(2) that involves 200 or more plants is a $660,000 fine and 24 years imprisonment (s33AD(4)).

It is a defence if the defendant can prove that the exposure did not endanger the health and safety of the child (s23A(6)).

A child is a person under 16 (s23A(8)).

Drug premises

“Drug premises” now includes a place where “commercial cultivation” by enhanced indoor means is occurring.

“Commercial cultivation” means either

• cultivation of a commercial quantity (50 plants) or

• cultivation of 5 to 49 plants and where the cannabis grown is intended for sale by any person. (s36TA)

Consequently, any place where 5 or more hydro plants is being grown for profit is capable of being a drug premises, exposing the occupants to prosecution for offences such as entering or being on drug premises (s36X) and organising or conducting drug premises (s36Z).

Consistent with the extension of the concept of drug premises to places where hydroponic cannabis is grown commercially, the amending Act also introduces a new set of indicators that premises might be drug premise, including evidence of the type of lighting employed, electricity consumption, exhaust fans and draught excluders, fertilisers and the boarding up of windows (s36W(3)).