What is the offence of ‘cultivating a prohibited plant’?
Cultivating a prohibited plant is a broad offence that captures a range of activities such as:
- Planting or growing prohibited plants – (cannabis plants, or genus Erythroxylon (a cocaine source) or of the species Papaver Somniferum (opium poppy), Papaver orientale (oriental poppy) or Papaver bracteatum (Persian poppy))
- Sowing or scattering seeds of prohibited plants
- Tending, nurturing or harvesting a plant – so even watering plants captures this offence.
The seriousness of this offence increases with an increased number of plants.
For the offence of cultivating cannabis plants by enhanced indoor means, the offence is regarded as more serious when more than 50 plants are seized.
What is the definition of ‘Enhanced Indoor Means’?
This refers to plants cultivated inside a building or structure with the assistance of:
- artificial light or heat, or
- nutrient enriched water, or
- spraying a suspended plant’s roots with nutrient solution.
The offence of cultivation by an enhanced indoor means is captured when the number of prohibited plants is not less than the small quantity applicable to prohibited plants but less than the commercial quantity applicable to prohibited plants. (see quantities in the penalty section below.)
What is the maximum penalty for these offences?
The maximum penalty for this offence depends on the number of plants involved, and whether or not the cultivation occurred by enhanced indoor means.
Cultivating a prohibiting plant (Cannabis Plants)
| Quantity of plants | Maximum Penalty |
| 1 to 5 plants (small) | 10 years imprisonment and / or a $220,000 fine ($5,500 in the Local Court.) |
| 6 to 50 plants (indictable) | 10 years imprisonment and / or a $220,000 fine ($5,500 in the Local Court.) |
| 51 to 250 plants (commercial) | 10 years imprisonment and / or a $220,000 fine ($11,000 in the Local Court.) |
| 251 to 1000 plants (large commercial) | 15 years imprisonment and / or a $385,000 fine (This is only dealt with in the District Court.) |
| >1000 plants (>large commercial) | 20 years imprisonment and / or a $550,000 fine (This is only dealt with in the District Court.) |
NB: For matters dealt with in the local court, the maximum penalty of imprisonment is for 2 years.
Cultivating a prohibiting plant (Cannabis Plants by enhanced indoor means)
| Quantity of plants | Maximum Penalty |
| 1 to 5 plants (small) | 10 years imprisonment and / or a $220,000 fine ($5,500 in the Local Court.) |
| 6 to 50 plants (indictable) | 10 years imprisonment and / or a $220,000 fine ($11,000 in the Local Court.) |
| 51 to 200 plants (commercial) | 15 years imprisonment and / or a $385,000 fine (This is only dealt with in the District Court.) |
| >201 (large commercial) | 20 years imprisonment and / or a $550,000 fine (This is only dealt with in the District Court.) |
NB: For matters dealt with in the local court, the maximum penalty of imprisonment is for 2 years
Please note that these penalties are reserved for the most serious cases only.
What are my options?
Plead guilty
This option is recommended only where you accept that:
- you cultivated or knowingly took part in the cultivation of a plant that is prohibited;
- the plant is a prohibited.
If charged with cultivation by an enhanced indoor means, then you also accept that
- cultivation occurred by way of enhanced indoor means.
A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.
What possible outcomes exist?
- A fine
- This varies depending on the number of plants involved.
- A non-conviction via a section 10 – asking the court for leniency
- Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
- a fine or a penalty.
- a conviction
- Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
- Conditional release order “CRO” (with or without conviction)
- This is usually subject to a period of good behaviour.
- If an offence is committed during the period of the order, a court may resentence you for the offence committed.
- Community Corrections Orders (“CCO”)
- A court may exercise this option (when aggravating circumstances Examples of aggravating circumstances include a repeat offence.
- An example of a CCO is performing service within the community.
- Intensive Corrections Order (“ICO”)
- This is where a term of imprisonment can be served in the community.
- Full-time imprisonment
- Served in a correctional facility.
Plead not guilty
To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:
- you cultivated or knowingly took part in the cultivation of a plant that is prohibited;
- the plant is a prohibited.
If charged with cultivation by an enhanced indoor means, the Prosecution must also prove that:
- cultivation occurred by way of enhanced indoor means.
If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.
Defences
- The plant was not a prohibited plant
- You did not cultivate a prohibited plant
- You did not knowingly cultivate a plant
- Duress – you were threatened or intimidated into cultivating a prohibited means.
Let us help. Get in Touch.
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Level 45, 680 George Street,
SYDNEY NSW 2000.
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