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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-13 Daily Xml
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CONTROLLED SUBSTANCES (CULTIVATION OF CONTROLLED PLANTS) AMENDMENT BILL

Introduction and First Reading

The Hon. D.G.E. HOOD (17:00): Obtained leave and introduced a bill for an act to amend the Controlled Substances Act 1984. Read a first time.

Second Reading

The Hon. D.G.E. HOOD (17:01): I move:

That this bill be now read a second time.

I say at the outset that, whilst I am aware I am moving a bill with only two sitting weeks remaining and that it will not pass the parliament in those two sitting weeks, I flag to members that should I have the privilege of being returned to this place after March I will move a similar bill in the very early stages of that parliament and will pursue that to a vote.

I am introducing today the Controlled Substances (Cultivation of Controlled Plants) Amendment Bill to rectify two areas where, in my view, the law concerning illicit drugs is in need of reform. The first area concerns the unrealistically light maximum penalties that apply to the cultivation of controlled plants, specifically cannabis plants. The bill increases the penalty. The second area concerns the fact that the cultivation of one cannabis plant has effectively been decriminalised in this state, and the bill removes the provision requiring an expiation procedure to apply to the offence of the cultivation of a single cannabis plant.

I will explain the amendments proposed in the first area. At present, a person who cultivates, without hydroponics, up to 19 cannabis plants not intending to sell them faces a maximum penalty of just $2,000 or two years' imprisonment, or both. In fact, as we know, the courts never impose a penalty of imprisonment for cultivating up to 19 plants, so effectively that makes the penalty $2,000 for cultivating up to 19 plants. That is the maximum penalty. For up to five plants the penalties are only $1,000 or imprisonment for 6 months, or both.

For completeness, I should add that if there are 10 plants or more there is a presumption—in the absence of proof to the contrary—that they are being cultivated for sale. This presumption can be displaced by the defendant stating that the plants were not, in fact, cultivated for sale. In the absence of any evidence to the contrary—that is, of recent sales by the accused or if there is any other reason to doubt the statement of the accused—such a statement would presumably have to be accepted by a court, and the charges would proceed on the basis of no intention of sale.

As you would be aware, sir, courts reserve the maximum penalty for the worst type of offence in that category committed by an offender with the worst criminal history and least contrition. Penalties ordinarily imposed for this offence are therefore substantially less than the maximum penalty of $2,000. If we consider the value of 19 cannabis plants, opinions will vary as to what an appropriate amount is. Common estimates are that each cannabis plant is worth between $2,000 and $4,000 on the street, and many people claim it may be $5,000 or even higher. However, if you pick an average of, say, $3,000 per plant, 19 plants would be worth about $57,000—or let us say $60,000 in round figures—on the street.

It is obvious that if a person wants to make some easy money then the prospect of earning up to $57,000, or roughly $60,000, by risking a fine of perhaps $500 or, at the absolute worst, $2,000, gives a very strong incentive to commit that crime. The whole purpose of the criminal law, of course, is to act as a deterrent to criminal behaviour, not an encouragement to commit a crime. If deterrence is completely lacking, the criminal law is simply not performing its function, as it clearly is not in this case. Why would anyone even be slightly concerned about a $500 fine, or at the absolute worst a $2,000 fine, when they stand to make in the order of $60,000?

The modest increase in the maximum fine from $1,000 to $2,000 to $10,000 provided in this bill means that the actual fines imposed are likely to still be only around $2,000 to $4,000 or something in that order. Even with this amendment I am proposing here, there is still very little deterrence but somewhat more deterrence, considering the profits that can be made. Perhaps the amendment is more symbolic than effective in some ways, but it is, at the very least, symbolic and it is a start. With the commercial realities as they are, I cannot see how anyone could oppose this amendment on the grounds that it is too harsh.

The second purpose of this bill is to change the law that applies where a person has cultivated just one cannabis plant. As mentioned above, one cannabis plant is probably worth between $2,000 and $4,000, although on some estimates in excess of $5,000. The cannabis comprised in the plant can be used by the offender or shared with his or her friends, of course, or sold if he or she so desires.

The law presently provides that where only cultivation is proved, such an offender must be given an expiation notice requiring payment of $300, together with a victims-of-crime levy of $60, making a total of $360 to be paid. No conviction at all is recorded. This offence can be repeated and the same provision applies. Whilst the police do issue on-the-spot fines, the amount of paperwork required compared to the seriousness of the penalty must make this seem rather pointless.

The point where I disagree with decriminalising the offence of cultivation of one cannabis plant is that decriminalisation is a step towards the legalisation for personal use, which is something I oppose. Looked at rationally, either illicit drugs are harmful and should not be legally permitted or they are not harmful and should be permitted. It is simply inconsistent to say that for cultivating one cannabis plant an offender cannot be prosecuted but for cultivating two cannabis plants prosecution is appropriate.

I mention briefly several recent research reports about the harm caused by cannabis, but before I do so I should point out again that the maximum penalty for cultivating one plant is $360, including the victims-of-crime levy. That plant is worth somewhere between $2,000 and $5,000 on the street and there is no conviction recorded. So, if someone is caught growing a cannabis plant, they are hit with a fine of $360, yet they stand to make something in the order of $2,000 to $5,000. Again, where is the disincentive for them to continue doing that over and over again, with no conviction recorded?

Again, I will return to some of the research in relation to the harm caused by cannabis. In February last year, researchers at Dalhousie University in Halifax, Canada completed a review of nine studies of some 50,000 people worldwide who had been in serous or fatal crashes. They concluded that drivers who use cannabis up to three hours before driving are twice as likely to cause a collision as those not under the influence of drugs or alcohol. This is because cannabis impairs the brain and motor functions needed for safe driving.

At around the same time as this study, a peer-reviewed study published in the British Medical Journal gave the results of a survey of almost 2,000 young people. They were interviewed initially, then 1.6 years later, 3½ years later and 8.4 years later. The study found that of those exposed to cannabis 14 per cent reported some psychotic symptoms compared with 8 per cent for those not exposed.

In August last year, a combined team of US, British and New Zealand researchers recruited 1,037 teens aged 13 and tested their IQ and brain function. They then interviewed them at ages 18, 21, 26, 32 and 38 (quite a substantial period of time) and performed more brain power tests at the final interview. They found that study members with more persistent cannabis dependence showed greater IQ decline. Those diagnosed as cannabis dependent at three or more interviews were found to have a reduced IQ score equivalent to the loss of six IQ points, taking them down from an average of 99.68 to 93.93. An IQ of 100 is considered average, thus making them well below average.

Research by a joint US and Canadian team published in August this year concluded that there was strong evidence that early cannabis use puts some teens at risk of developing addiction and mental health problems as adults. A co-author of the report said that this is because in adolescents the brain is still fine-tuning how different areas, such as learning and memory, interact, and it appears that cannabis use alters the process.

There can be no doubt that cannabis use, especially by adolescents, is a dangerous thing. Whilst I do not wish to make criminals of young people, we would be failing in our duty if we continue to permit low-end cannabis cultivation with virtually no penalty whatsoever; indeed, with a financial incentive to continue the practice.

This proposal does not affect the expiation procedure for possession. I make that absolutely clear. It does not affect anyone who is expiated for possession or use of small amounts of cannabis, cannabis resin or cannabis oil. It only addresses the cultivation of a cannabis plant. It is a small change in the right direction.

In summary, there are some in our community who see cannabis as a harmless social drug. The current law on cultivating one cannabis plant gives some official sanction to that view. In light of the research I have outlined and much, much more that I have not but could have, the truth is that cannabis is a harmful drug, particularly for adolescents. Adolescents often receive conflicting information about drugs and could easily see the present scheme of decriminalisation as official confirmation that the research I have referred to is wrong.

I urge members to support this modest reform. As I say, it will not be taken to a vote until the next parliament, but I urge members to support it because, at the moment, we have a financial incentive for people to cultivate cannabis in this state.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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