Drug Cultivation in NSW

Legal Experts in Drug Offences in NSW - Including Drug Cultivation

Drug offences and the misuse of illegal drugs are taken very seriously within the NSW legal system. If you have been charged with drug cultivation (e.g. cannabis cultivation), contacting an experienced lawyer will prove imperative to achieving the best possible outcome for your case.

The team here at Hamilton Janke lawyers are experts in drug offences, including drug cultivation and commercial quantity drug trafficking, and can provide advice and support to assist you in getting your best result.

Defining Drug Cultivation in NSW

Cultivating prohibited cannabis plants is the act of sowing or scattering the seed to, as well as planting, growing, tending to, nurturing or harvesting a prohibited plant. This is common regarding marijuana, as well as cocaine and opium; however, it can be relevant in the cultivation of all prohibited plants.

What is Drug Cultivation?

Difference Between Cannabis Cultivation and Manufacturing

Drug cultivation involves the process of growing a prohibited plant or drug. Contrastingly, drug manufacturing refers to any process that is used, other than cultivation, to produce a drug.

Drug manufacturing carries serious penalties under the Australian criminal code, with a maximum sentence of 10 years for the manufacture of a controlled drug, a maximum penalty of 25 years if it involves a marketable quantity of drugs and a maximum penalty of life imprisonment for a commercial amount of drugs.

Is Drug Cultivation a Crime in New South Wales?

The cultivation of a prohibited plant is an offence under s.23 of the Drug Misuse and Trafficking Act (1985), which states a person who: 

Cultivates, or knowingly takes part in the cultivation of, a prohibited plant, supplies, or knowingly takes part in the supply of, a prohibited plant, or has a prohibited plant in his or her possession, is guilty of an offence.


Penalty for Drug Cultivation in NSW

As outlined by the Drug Misuse and Trafficking Act (1985), the maximum penalty for drug cultivation in NSW carries a maximum penalty of 2-year imprisonment (if heard in the local court) or a prison sentence of up to 10 years if the matter is heard in the district court. If the case refers to a plant other than cannabis, the maximum penalty is 15 years.

However; this maximum penalty can differ dependent on various factors, including: 

  • The number or weight of plants cultivated 
  • Whether the cultivation took place by enhanced indoor means 
  • Whether the plants were cultivated for a commercial purpose 
  • Whether the cultivation took place in the presence of a child 


Under law, if you are charged with drug cultivation, the court has discretion to sentence you to any of the following penalties: 

  • Imprisonment 
  • Section 10 dismissal 
  • Fine
  • Conditional Release Order 
  • Community Correction Order 
  • Intensive Correction Order (ICO)

What Happens If You Get Reported for Drug Cultivation?

If you are reported for drug cultivation, and the police are satisfied that you both cultivated a plant and that the plant was prohibited, you may be charged with the offence of drug cultivation under section 23 Of the Drug Misuse and Trafficking Act (1985). As a criminal offence, you may have your matter heard in either the local or the district court, depending on the number of plants that the person is charged with cultivating. 

Where the number of prohibited plants exceeds the indictable quantity, the matter will be heard in the district court.

Do You Legally Have to Report Drug Cultivation If You Witness It?

In many circumstances, individuals are not legally required to report a crime when they witness it. However, under section 315 of the Crimes Act 1900, is it an offence to conceal information regarding a serious indictable offence (any offence that carries a prison term of at least five years) if you don’t have a reasonable excuse for failure to report. 

As drug cultivation carry a maximum penalty of up to 10 years, failure to report this offence if you witness it can have negative legal consequences. If you witness such an offence, it is recommended that you seek advice from an expert criminal lawyer or else, report any knowledge of it anonymously through crime stoppers.

Defences for Drug Cultivation in NSW

Pleading Not Guilty to Drug Cultivation NSW

If you choose to plead ‘not guilty’ to the charges of drug cultivation this means that you disagree that the Police can prove either one, or several of the elements of the drug cultivation charges against you. In this circumstance, you will not be convicted unless the prosecution can prove beyond a reasonable doubt the elements of the offence. 

Our team can advise you on the various legal defences that may be applicable to your circumstances, and can result in either a lesser charge or an acquittal. These defences can include, but are not limited to; 

  • A maintenance of innocence if you did not engage in the offence 
  • Argue that the plant was not prohibited 
  • Necessity 
  • Duress

Pleading Guilty to Drug Cultivation NSW

If you plead guilty to drug cultivation, you agree that the prosecution can prove each of the elements of the offence that you have been charged with, against you. Pleading guilty if you have committed the offence will provide you with the best possible outcome. 

If you are choosing to plead guilty, an earlier plea most often entitles you to a lesser sentence, with a current maximum discount of 25% for an early plea. Your case will be heard in a sentencing hearing, where the Hamilton Janke team can assist you in achieving the best possible outcome for the circumstances of your case.

Burden of Proof

As a criminal offence, the burden of proof lies on the prosecution to prove, beyond a reasonable doubt, that an individual has engaged in drug cultivation. 

To be found guilty of drug cultivation under section 23 (1) of the Drug Misuse and Trafficking Act (1985), the prosecution must prove; 

  • That you cultivated a prohibited cannabis plant (or knowingly partook in it’s cultivation) 


To be found guilty of cultivating by enhanced indoor means, the prosecution must prove the following; 

  • That you cultivated a prohibited plant (or knowingly partook in it’s cultivation) 
  • You did this by enhanced indoor means (eg. artificially supplied light/heat, nurtured with nutrients-enriched water etc.)
  • This occurred with a commercial purpose

Why Choose Hamilton Janke Lawyers

If you are being charged with drug cultivation 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 our expert Criminal Defence Lawyers now.

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