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Offences involving prohibited and illegal plants

Cultivation is defined to include sowing seed, planting, tending, nurturing or harvesting. Watering a plant, shading it from the sun, picking the heads off a friend's plant, even watering ungerminated seeds, all come within the definition of cultivation. Possession of plants is also an offence under the same section and with the same maximum penalty as for cultivation.

Under s.23 of the Drug Misuse and Trafficking Act, it is an offence to:

  • cultivate
  • knowingly take part in the cultivation of
  • possess
  • supply a prohibited plant (for example, cannabis).

The penalty for cultivating cannabis depends on the number of plants, not their gender or size. The maximum penalty for cultivating less than small quantities (less than 5 plants) is $5500 and two years’ imprisonment if the offence is dealt with summarily. It is $220,000 or ten years if the offence is dealt with on indictment.

The maximum penalty for the cultivation of small quantities ( 5 to 49 plants) is $385,000 and 15 years’ imprisonment. For cultivation of 50 or more plants (commercial quantity), the maximum penalty is $385,000 and 15 years’ imprisonment. For cultivation of 200 or more hydroponic plants (large commercial quantity) the maximum penalty is $550,000 and 20 years’ imprisonment.

Offence Categories

There are now two entries for cannabis as ‘prohibited plants’ in the Schedule (‘cannabis cultivated by enhanced indoor means’ and ‘cannabis cultivated by any other means’). The relevant offence categories in the Schedule are as follows:

  • Exposing a child to indoor cultivation

Section 23A(1) makes it an offence to ‘expose a child’ to the cultivation process or substances stored for use in cultivation. A child is a person under 16.

The maximum penalty for this offence where it involves one to four plants is a fine of $11,000 and two years’ imprisonment if it is dealt with summarily, or a $264,000 fine and 12 years’ imprisonment if it is heard on indictment.

The maximum penalty where the offence involves five to 199 plants is a $462,000 fine and 18 years’ imprisonment. The maximum penalty where there are 200 or more plants is a $660,000 fine and 24 years’ imprisonment.

These offences are wholly indictable. It is a defence if the accused can prove that the exposure did not endanger the health and safety of the child.

Defences to Cultivation

It is a defence to a charge of cultivation of a prohibited plant if the accused can establish that they did not know the plant was a prohibited plant. The accused must inform the court if they propose to give such evidence.

Possession of Prohibited Plants

Possession of plants is also an offence carrying the same maximum penalty as cultivation. There may be no evidence of cultivation of plants, but evidence of possession, in which case that should be the charge laid. Proof of knowledge and custody or control of the plants is required for conviction.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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