Cultivation of Narcotic Plants (Non-Commercial Quantity)

by Doogue + George Criminal Defence Lawyers

Cultivation of Narcotic Plants (Non-Commercial Quantity)                      

Cultivation charges are generally laid in situations when people have been cultivating cannabis (marijuana). They can range from growing a couple of plants at home to quite sophisticated hydroponic set-ups. A non-commercial quantity of cannabis is considered to be less than 25 kilograms or 100 plants.

The legislation

This offence of cultivate narcotic plants (such as cannabis) is governed by section 72B of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”) which reads as follows:

A person who, without being authorized by or licensed under this Act or the regulations to do so, cultivates or attempts to cultivate a narcotic plant is guilty of an indictable offence and liable—

  1. if the trial judge (or magistrate on a summary hearing) is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose related to trafficking in that plant, to level 8 imprisonment (1 year maximum) or a penalty of not more than 20 penalty units or both; or
  2. in any other case, to level 4 imprisonment (15 years maximum).

“Cultivation” is defined in the act as the sowing of a seed, planting, growing, tending, nurturing or harvesting a narcotic plant. It also includes grafting, dividing or transplanting a narcotic plant.

This list is not exhaustive and other acts can be seen to satisfy the definition of “cultivate”. Generally, any act which may be viewed as assisting in the growth of a narcotic plant or cannabis may give rise to cultivation charges.

To prove this charge the police must show that the accused intentionally cultivated cannabis or narcotic plants, or attempted to cultivate cannabis or other narcotic plants. A list of narcotic plants are specified in Column 1 of Part 2 of Schedule 11 in the act. Included in this list is cannabis, as well as two types of coca plant and two types of opium poppy. A narcotic plant includes a cutting of a plant, whether or not the cutting has roots.

The police will often charge a number of people in relation to the same cannabis cultivation charges because various items identifying them have been found at the address where the cannabis cultivation is occurring. A criminal defence lawyer can best assess the strength of a police brief against an accused.

Jurisdictional limits

Cultivate cannabis or other narcotic plant is an indictable offence that carries a significant penalty. The offence carries a 15-year term of imprisonment as the highest possible sentence. If involving a non-commercial quantity, any such cultivation charge could be heard in the County Court or summarily in the Magistrates’ Court.

The decision on which jurisdiction will hear a case often reflects the seriousness with which the indictment or summons is viewed and/or the quantity or scale of the operation. The circumstances surrounding cultivation charges will determine where a case will be heard. For instance, a small scale, unsophisticated cannabis plant set up in a person’s garage containing a single plant may be heard in the Magistrates’ Court as opposed to a larger scale hydroponic cannabis set up for the purpose of trafficking. The second example is likely to be heard in the County Court (please note that these are examples and every case will be assessed on its own facts).

The elements

The prosecution must prove the following:

  • The accused intentionally cultivated a plant
  • The plant cultivated by the accused was cannabis or another narcotic plant

Element 1: The accused intentionally cultivated a plant

Taking part in any step of the growing process will be considered ‘cultivating’ for the purpose of this section. A person can take part in the process for example, by watering the plants even if the plant is not theirs, supplying electricity, checking up on growth progress or transporting equipment or materials. Providing or arranging finance for the operation may also be deemed cultivating. Whatever the act that constitutes the cultivation, the relevant act must have been performed intentionally for a cultivation charge to be valid. The accused must have known that the narcotic plant was a narcotic plant.

Intention may be evident by an admission of the accused. However, in most cases it will be necessary to infer the requisite intention from the act and the circumstances in which it was performed.

In some cases, it may also be possible to infer an intention to cultivate a specified quantity from the fact that:

  • The circumstances were such that the accused’s suspicions that the specified quantity of plants was being cultivated would have been aroused; and
  • The accused deliberately failed to make inquiries about the quantity being cultivated, for fear of learning the truth.

Evidence that a person is in possession of cannabis is not evidence that he or she cultivated the plants which provided the cannabis.

The accused may have a defence under s.72C of the act. This is discussed further below.

Element 2: The plant cultivated by the accused was a narcotic plant

The plant cultivated by the accused must have been a “narcotic plant”. Section 70(1) defines “narcotic plant” to mean “any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven” of the Drugs Act. This includes cannabis, as well as two types of coca plant and two types of opium poppy.

Defences

Lack of knowledge

Lack of knowledge is a defence under section 72C of the act. Both elements of the charge can be proven; but without knowledge, a cultivation charge cannot be made out. The accused must prove that he/she did not know or suspect the plant he/she was cultivating was cannabis or a narcotic plant. Secondly, the accused must also prove that he/she could not reasonably have been expected to have known or suspect that the plant he/she was cultivating was a cannabis or a narcotic plant.

Authorisation/Licencing

In order for this defence to apply, the accused must prove on the balance of probabilities that they were appropriately authorised or licenced. The provisions relevant to the authorisation and licensing are found in Division 2 and 4 of the Act.

Defences to a charge of cultivate narcotic plant can also include but are not limited to sudden or extraordinary emergency, involuntary act, mental impairment, wrongful identification, factual dispute, necessity, or duress.

Cultivation charges: Sentencing outcomes in the Magistrates’ Courts

The Sentencing Advisory Council has released sentencing snapshot for the sentencing of Cultivate Narcotic Plant matters in the Magistrates’ Court between July 2011 and June 2014. Over the 3-year period, 2,018 cases were before the court. 7.8% of people sentenced received a period of imprisonment, 12.1% received a wholly suspended period of imprisonment, 2.1% received a partially suspended sentence, 37.8% received a fine, and about 21.3% received some form of community based order.

A first offence of a small amount of cannabis or narcotic plant grown in a simple set up for personal use, may see this matter being dealt with by way of a diversion (previous known as a good behaviour bond) or financial penalty in the Magistrates’ Court.

The most common length of imprisonment imposed was between 0 and 3 months with 29.7% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing outcomes in the higher courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of Cultivate Narcotic Plant matters in the County and Supreme Courts between 2008 and 2013. Over the 5-year period, 116 people were sentenced in the higher courts. 20% of people were given an immediate custodial sentence, 40% of people received a wholly-suspended sentence, with 22% of people receiving a partially suspended sentence. The most common length of imprisonment was 1 year.

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.

Community Correction Orders are also a sentencing disposition available for cultivation charges. Community Correction Orders can include conditions to perform unpaid community work, and treatment and rehabilitation for alcohol, drug use and mental health.

Have you been charged with the offence of Cultivation of Narcotic Plants (Non-Commercial Quantity)? Talk to a lawyer and know the possible criminal defences applicable in your case. Doogue + George Defence Lawyers is experienced in drug offence cases and we can help you secure an excellent outcome in court.

To read case studies related to this charge, click here where this article was originally published: https://www.criminal-lawyers.com.au/offences/cultivation-narcotic-plants.



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