Drug offences and the misuse of illegal drugs are treated as very serious within the NSW legal system. If you have been charged with cultivating a prohibited plant such as cannabis, it is imperative that you contact an experienced lawyer in order to achieve the best possible outcome for your case.
The team here at Hamilton Janke Lawyers are experts in drug offences, including those of cultivate prohibited plant, and will provide invaluable advice and support to assist you in getting your best result.
Cultivating prohibited plants in NSW is governed by the Drug Misuse and Trafficking Act 1985 No 226 (NSW) (‘the Act’). The Act stipulates that cultivate, in relation to a prohibited plant, means to sow or scatter the seed produced by the prohibited plant. This definition also includes to plant, grow, tend, nurture, or harvest the prohibited plant.
The most frequently prosecuted charges of cultivate prohibited plant relate to cannabis plants, also known as marijuana. The definition extends, however, to any growing plant of:
Simply watering a plant or moving it into sunlight will amount to cultivating a prohibited plant for the purposes of the act if you are aware you are doing so.
For the purposes of the Act, you “take part in” the cultivation or supply of a prohibited plant if:
Drug cultivation involves the process of growing a prohibited plant. Drug manufacture and production, however, relates to any process that is used, other than cultivation, to produce a drug.
This is an offence governed by section 24 of the Act. This carries serious penalties under the Act, with a maximum sentence of 15 years for the manufacture of less than a commercial quantity, 20 years for a commercial quantity, and life imprisonment for a large commercial quantity.
The cultivation of a prohibited plant is an offence under section 23 of the Drug Misuse and Trafficking Act 1985 No 226 (NSW), which states that a person who:
is guilty of an offence.
The Act also contains the following offences in relation to drug cultivation:
Accordingly, these offences entail varying penalties dependent upon the quantity, purpose, and context of the cultivation.
Cultivation by enhanced indoor means, in relation to a prohibited plant, means cultivation of the plant that occurs inside a building or structure and that involves any one or more of the following:
Because plants mature more quickly when cultivated by enhanced indoor means, a smaller number of plants will still equate to greater production than by other means. For this reason, the maximum number of plants that amount to each relevant quantity (small, indictable, commercial, and large commercial) is smaller.
It is an offence to cultivate a prohibited plant by enhanced indoor means, as well as to do so for a commercial purpose. It is an aggravated form of these offences, under section 23A of the Act, to do so in the presence of children. If a person exposes a child to that cultivation process, or to substances being stored for use in that process, they are guilty of an offence that carries a greater penalty than it would otherwise.
For the purposes of these offences, a child is a person under 16 years of age.
Cultivating a prohibited plant is an indictable offence in NSW, which means that the maximum penalties are above the jurisdiction of the Local Court.
Where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant concerned is not more than the “indictable quantity”, however, it will be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects to have it dealt with on indictment.
The penalties for this offence depend upon the quantity of the plant being cultivated. This is determined by number of plants for charges relating to cannabis and by weight for those in respect of cocaine and poppies. The quantity categories in respect to cannabis are:
If dealt with on indictment, the cultivation, supply, or possession of a prohibited plant carries a maximum penalty of 10 years imprisonment and/or a fine of 2,000 penalty units (currently $220,000) where the offence involves less than a commercial quantity and relates to cannabis plant. If heard in the local court, the maximum penalty is 2 years imprisonment. If the case refers to a plant besides cannabis, the maximum penalty becomes 15 years on indictment.
The cultivation, supply, or possession of a prohibited plant carries a maximum penalty of 15 years imprisonment and/or a fine of 3,500 penalty units (currently $385,000) where the offence involves not less than a commercial quantity of cannabis plant. In cases involving other plants, the maximum penalty is 20 years imprisonment.
If no less than a “large commercial quantity” is involved, the maximum penalty is 20 years imprisonment and or/ 5,000 penalty units ($550,000) where the offence involves cannabis, or life imprisonment in all other cases.
The penalties for cultivating prohibited plants by enhanced indoor means, and to do so for a commercial purpose, are the same as those without, however the number of plants necessary to meet each quantity category is less. This is due to the increased rate of production possible by this means. For cannabis plants cultivated by enhanced indoor means, the quantity categories are:
Cultivating prohibited plants by enhanced indoor means in the presence of a child aggravates these offences, and the maximum penalty becomes 24 years imprisonment and/or a fine of 6,000 penalty units (currently $660,000).
While these are the maximum prison sentences and fines a court can impose for cultivating prohibited plant offences, the court has discretion to sentence you to any of the following alternative penalties:
If you choose to plead guilty to affray charges in NSW, you agree with the charges against you and take responsibilia
If you are reported for cultivating a prohibited plant and the police are satisfied that you both cultivated the plant and that it was prohibited, you may be charged with an offence under sections 23 and 23A of the Drug Misuse and Trafficking Act (1985), depending upon the quantity, purpose, and context of the cultivation. As it is a criminal offence, your matter may be heard in either the local or the district court, dependent upon how many plants you are charged with cultivating.
If the number of prohibited plants exceeds the indictable quantity, or they were cultivated by enhanced indoor means for a commercial purpose, your matter will be heard in the district court.
ty for the offence. In these circumstances, your matter will progress to sentencing, where the judge or magistrate will assess the case’s individual circumstances to determine an appropriate punishment. If your matter is heard in the local court you are liable to a maximum penalty of 2 years imprisonment and are liable to a maximum penalty of 10 years imprisonment if your case is heard in the district court.
If you choose to enter a guilty plea, doing this at the earliest possible opportunity will usually provide the best possible outcome in sentencing. This will mean your case progresses straight to sentencing, with a maximum 25% sentencing discount for an early plea.
In many circumstances, you are not legally required to report a crime if you witness one. Under section 316 of the Crimes Act 1900 (NSW), however, it is an offence to conceal information regarding a serious indictable offence (any offence that carries a prison term of at least five years) without a reasonable excuse for failure to report.
This means that if you have information regarding the cultivation of prohibited plants by another person and fail to report it, you may be guilty of an offence under this section. This can carry a maximum penalty of imprisonment from 2 to 5 years, depending upon the maximum penalty of the concealed offence.
Accordingly, if you witness such an offence, it is recommended that you seek advice from an expert criminal lawyer or report any knowledge of it anonymously through Crime Stoppers.
Choosing to plead not guilty to a charge of cultivating prohibited plants mean that you disagree that Police can prove that you committed the offence. This will “put the prosecution to proof” on whether the elements of the offence can be made out beyond all reasonable doubt.
Our team can advise you upon the various legal defences that may be appropriate in your circumstances, which can result in either a lesser charge or an acquittal. Without limitation, these defences include:
If you acknowledge that the prosecution can prove each of the elements of the offence that you have been charged with, you may choose to plead guilty. If you agree with the charges against you, pleading guilty will afford you the best outcome in the circumstance. It is a demonstration of contrition and remorse, and, in recognition of its utilitarian value, a guilty plea entitles you to a maximum discount of 25% off your sentence.
It may also be possible for one of our experienced solicitors to negotiate with the prosecutors to allow you to plead guilty to a less serious charge.
Your case will be heard in a sentence hearing, where the Hamilton Janke team can assist you in achieving the best possible outcome in the context of your case.
As a criminal offence, the burden falls on the prosecution to prove, beyond a reasonable doubt, that an individual has engaged in cultivating prohibited plants. You will not be convicted unless the prosecution can prove the elements of the offence, which are:
This list is expanded accordingly if you are charged with cultivating by an enhanced indoor means, for a commercial purpose, and in the presence of children.
f you are being charged with cultivating a prohibited plant in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact Hamilton Janke Lawyers today.
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