Cultivating Prohibited Plants

THINGS YOU NEED TO KNOW:

1. Cultivating prohibited plants is a criminal offence which can result in imprisonment.
2. Cultivating prohibited plants is an offence under Section 23(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
3. The penalties are largely dependent on the quantity of the cultivated prohibited plants.
4. Cultivating prohibited plant matters are heard in the Local Court and District Court.
5. If you plead guilty or are found guilty, there are a number of factors that can determine the sentencing outcome.

The criminal offence of cultivating prohibited plants is a serious indictable offence with severe consequences. Contact our award-winning expert criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may secure the best outcome for you.

WHAT IS THE CRIMINAL OFFENCE OF CULTIVATING PROHIBITED PLANTS?

Section 23(1) of the Drug Misuse and Trafficking Act 1985 (NSW) constitutes it a criminal offence for a person to:

• cultivate, or knowingly take part in the cultivation of, a prohibited plant,
• supply, or knowingly take part in the supply of, a prohibited plant, or
• have a prohibited plant in his or her possession

WHAT IS THE MEANING OF CULTIVATE?

To best understand the criminal offence of cultivating a prohibited plant, it is important to know what the definition of cultivate is.

The Drug Misuse and Trafficking Act 1985 (NSW) defines cultivate, in relation to a prohibited plant as including:

• sow or scatter the seed produced by the prohibited plant, and
• plant, grow, tend, nurture or harvest the prohibited plant.

WHAT IS A PROHIBITED PLANT?

To best understand the criminal offence of cultivating a prohibited plant, it is also important to know what a prohibited plant is.

The Drug Misuse and Trafficking Act 1985 (NSW) defines a prohibited plant as:

• A cannabis plant cultivated by enhanced indoor means, or
• A cannabis plant cultivated by any other means, or
• Any growing plant of the genus Erythroxylon or of the species Papaver Somniferum, Papaver orientale or Papaver bracteatum, or
• Any growing plant of a description specified in an order in force under subsection (2),

but does not include any growing plant, referred to in paragraph (a), (a1) or (b), of a description prescribed for the purposes of this definition.

WHAT IS THE PENALTY FOR THE CRIMINAL OFFENCE OF CULTIVATING PROHIBITED PLANTS?

The maximum penalties applicable for the criminal offence of Cultivating prohibited plants are subject to the quantity of cultivated prohibited plants.

DEALT WITH SUMMARILY

Section 30 of the Drug Misuse and Trafficking Act 1985 (NSW) states that where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the small quantity applicable to the prohibited plant or prohibited drug and the matter is dealt with summarily, the maximum penalty is a fine of $5,500 and/or 2 years imprisonment.

Section 31 of the Drug Misuse and Trafficking Act 1985 (NSW) states that where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the indictable quantity applicable to the prohibited plant or prohibited drug and the matter is dealt with summarily, the maximum penalty is a fine of $11,000 and/or 2 years imprisonment.

DEALTH WITH ON INDICTMENT

If the matter is heard on indictment, Section 32 of the Drug Misuse and Trafficking Act 1985 (NSW) prescribes a maximum penalty of a fine of $220,000 and/or imprisonment for a term of 15 years, unless the offence relates to cannabis plant or cannabis leaf, at which point the maximum penalty is a fine of $220,000 and/or imprisonment for a term of 10 years.

Section 33 of the Drug Misuse and Trafficking Act 1985 (NSW) states that if a person is convicted of cultivating, or knowingly taking part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants under Section 23(2) (a) of the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty is a fine of $385,000 and/or imprisonment for a term of 20 years, unless the offence relates to cannabis plant or cannabis leaf, at which point the maximum penalty is a fine of $220,000 and/or imprisonment for a term of 15 years.

If the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the maximum penalty for the offence is $550,000 and/or life imprisonment, unless the offence relates to cannabis plant or cannabis leaf, at which point the maximum penalty is a fine of $550,000 and/or imprisonment for a term of 20 years.

WHAT DOES THE PROSECUTION NEED TO PROVE?

You will beat a Cultivating prohibited plants charge if the prosecution cannot prove beyond reasonable doubt that you:

• Cultivated, or knowingly took part in the cultivation of a plant; and
• That the plant was a prohibited plant.

WHAT ARE THE DEFENCES AGAINST GUILT FOR A CULTIVATING PROHIBITED PLANTS CONVICTION?

Did not commit the act: You may defend a cultivating prohibited plants charge on the defence that you did not commit the act of cultivating prohibited plants.

Legal plant: That the plant you were cultivating was not a prohibited plant.

Duress: You may defend a cultivating prohibited plants charge on the basis of duress, which is that you cultivated the prohibited plants under duress due to a threat of death or serious harm against you or your family, with the threat being so severe that a person of ordinary firmness would be unable to resist and you could not have rendered the threat ineffective.

Other defences against a conviction of the criminal offence of cultivating prohibited plants may be available to you depending on the specific circumstances of your case. Contact Criminal Lawyers Group now so that we may analyse the defences available to you.

WHAT ARE SOME EXAMPLES OF CULTIVATING PROHIBITED PLANTS OFFENCES?

Examples of actions that may constitute the criminal offence of cultivating prohibited plants include, but are not limited to:

• Watering a family member’s opium poppy plants
• Planting a cannabis plant in your backyard and ensuring it receives water and sunlight
• Planting cannabis seeds in your friend’s backyard and nurturing the growth of cannabis

WHAT FACTORS WILL AFFECT PUNISHMENT?

If you are convicted of a cultivating prohibited plants offence, the court may consider a number of factors that will determine the punishment you receive, including but not limited to:

• The quantity of the plant cultivated
• The type of plant cultivated
• Whether the cultivation was an isolated act
• The level of financial gain from committing the offence, if any
• Any criminal history, particular with regards to drug offences
• The level and relevance of your own drug addiction, if any, as an alternative to the offence having been committed out of pure financial greed
• Any assistance you give to authorities is important in consideration of a reduced sentence
• Positive character references
• Early guilty plea

WHAT COURT ARE CULTIVATING PROHIBITED PLANTS OFFENCES HEARD IN?

The criminal offence of cultivating prohibited plants is heard in the Local Court and District Court. Where the number and amount of cultivated plants exceed the indictable quantity, the matter must be dealt with in the District Court.

Our expert criminal lawyers have a wealth of experience in obtaining the best outcomes in criminal matters across all levels of courts in NSW, including cultivating prohibited plants offences in the Local Court and District Court.

WHAT ARE YOUR OPTIONS?

When facing a cultivating prohibited plants charge, you have several options in court. These include:

Pleading Not Guilty: Whether you are advised to plead not guilty or not, you have an inherent right to test the prosecution case by challenging the prosecution’s evidence, and fight for your acquittal. There are risks associated with this option and our experienced lawyers will always advise you of these factors.

Pleading Guilty: In some cases, you may be guilty of the charge, but the facts may be in issue, or you may be guilty of a lesser charge and not the charge that police have laid.

CONTACT US NOW

This page contains general information and is not to be taken as legal advice.

For quality and award-winning legal advice, contact our expert criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may analyse your case and secure the best possible outcome for you.