Prohibited plants (cultivate, supply or possession)

What is the offence of cultivate prohibited plant?

The offence of Cultivate prohibited plant is found at section 23 of the Drugs (Misuse and Trafficking) Act 1985.

Cultivate prohibited plant is an offence that can be established by evidence of you actually cultivating a plant (e.g. witness evidence, phone intercepts and text messages) or by the amount of the plants in your possession. Common examples of where a person’s prospects of successfully defending the charge are increased include where the prosecution is reliant on the testimony of one witness, phone taps or text messages are open to interpretation, or where plants are found in a isolated area of a property.

If you are charged with the offence of Cultivate prohibited plant, your options will normally be to plead guilty or not guilty.

Pleading not guilty

You will be found not guilty of the offence of Cultivate prohibited plant if the police cannot prove beyond reasonable doubt:

  1. You:
    1. Cultivate, or knowingly take part in the cultivation of, a prohibited plant; or
    2. Supply, or knowingly take part in the supply of, a prohibited plant; or
    3. Have a prohibited plant in your possession.
  2. The number of plants (if applicable).

Cultivate includes sow or scatter seed, plant, grow, tend, nurture or harvest.

Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.

Why is the number of plants important in cultivation cases?

The Drugs (Misuse and Trafficking) Act 1985 contains what is known as a deeming provision. What this means is that if there are more than 50 plants, the plants will be deemed to be for supply even if there is no other evidence of the drugs being for supply. The logic behind this provision is that a person is unlikely to have large quantities of drugs solely for personal use.  Where the amount of the drug is not less than 50 plants, you will have to prove on the balance of probabilities that you had the drug otherwise than for supply.

The number of plants in Cultivate prohibited plant cases is vital. The number of plants determines not only whether the deeming provision has application but also in determining whether the offence has to be dealt with in the District Court as opposed to the Local Court and the maximum penalty that you will face.

The table below lists the number of plants and what category they under. Offences involving large commercial quantities carry standard non parole periods.

Prohibited plant Trafficable quantity Small quantity Indictable quantity Commercial quantity Large commercial quantity Discrete dosage unit (DDU)
Cannabis plant 5 50 250 1000

What are the defences to cultivating prohibited plants?

The prosecution must establish that a person committed the offence as detailed in the pleading not guilty section above. If the prosecution is able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established.

Contact our offices at Sydney, Parramatta, Blacktown and Redfern to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of cultivation.

Pleading guilty

If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.

Depending on the seriousness of the allegation against you and the effect of a conviction, the charge of Cultivate prohibited plant may be dealt with by way of section 10 (meaning no conviction) or full time imprisonment.

The maximum penalties for the offence of Cultivate prohibited plant depends on the number of plants. Where the number of plants is less than a commercial quantity, the offence may be dealt with in the Local Court and the maximum penalty will be 2 years imprisonment and/or a fineThe maximum penalties prescribed are detailed in the table below.

Amount Local Court maximum penalty District Court maximum penalty
Not more than a small quantity

$5,500.00 and/or 2 years imprisonment

$220,000.00 and/or 10 years imprisonment
Not more than the indictable quantity

$1,100.00 and/or 2 years imprisonment

$220,000.00 and/or 10 years imprisonment
Indictable quantity

$1,100.00 and/or 2 years imprisonment

$220,000.00 and/or 15 years imprisonment
Commercial quantity

Strictly indictable

$385,000.00 and/or 15 years imprisonment
Large commercial quantity

Strictly indictable

$550,000.00 and/or 20 years imprisonment

Penalties that a court can impose in NSW are:

Why choose AC Law Group?

Our solicitors are experts at obtaining the best outcome possible for cultivation offences. For these offences, a good lawyer can be the difference between freedom or gaol. To read more about AC Law Group, click here.

To discuss your cultivation charge, call AC Law Group at our Sydney, Parramatta, Blacktown and Redfern offices or make a website inquiry today.

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