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Cultivate prohibited plant

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW it is an offence to cultivate or grow a prohibited plant. This includes things such as sowing or scattering the seeds of the plant or planting, growing, tending to, nurturing or harvesting the plant. The most common example of this offence is people who grow cannabis.

A person can be charged with this offence if they grow a plant which is a prohibited plant.

The maximum penalty for the offence is 10 years imprisonment.

If the person is growing the prohibited plan for a commercial purpose then the maximum penalty for the offence is 15 years imprisonment.

THE OFFENCE OF CULTIVATE PROHIBITED PLANT

The offence of Cultivate Prohibited Plant is contained in section 23 of the Drug Misuse and Trafficking Act 1985 and states a person who:

  • cultivates, or knowingly takes part in the cultivation of, a prohibited plant,
  • supplies, or knowingly takes part in the supply of, a prohibited plant, or
  • has a prohibited plant in his or her possession,

is guilty of an offence.

WHAT ACTIONS MIGHT CONSTITUTE THE OFFENCE OF CULTIVATE PROHIBITED PLANT?

Examples of Cultivate Prohibited Plant include:

  • Scattering cannabis seeds in a secluded area of your parents 1000 acre property;
  • Watering your partners opium poppy plants; or
  • Planting a cannabis plant you got off your friend in one of your favourite pots and ensuring it gets enough water and sunlight.

WHAT THE POLICE MUST PROVE

To convict you of Cultivate Prohibited Plant the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you cultivated a plant; and
  • That the plant was a prohibited plant.

POSSIBLE DEFENCES FOR CULTIVATE PROHIBITED PLANT

The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that you were not cultivating a plant;
  • To argue that the plant was not prohibited;
  • Necessity; or
  • Duress;as the reason for your conduct.

WHICH COURT WILL HEAR YOUR MATTER?

What court the charge will be finalised in depends on the number of plants the person is charged with cultivating.

Where the number of prohibited plants exceeds the indictable quantity, this matter is strictly indictable which means that it can only be finalised in the District Court.

Where the number of prohibited plants does not exceed the indictable quantity, this matter is a Table 1 offence which means that either the Director of Public Prosecutions or the person who has been charged can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.

Where the number of prohibited plants does not exceed the small quantity, this matter is a Table 2 offence which means that the Director of Public Prosecutions can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.

If the matter is finalised in the Local Court the court can only impose a maximum penalty of two years imprisonment.

THE DANGERS OF COMPLETING A WRITTEN NOTICE OF PLEADING:

The form seems straight forward and can seem to be an attractive alternative to attending court in person. However using them can be a very bad idea.

It is important to be wary of Police that convey to you that they you can simply complete the written notice instead of attending court. While technically true, it is not advisable. Not only does it reflect poorly on you but you can be convicted and sentenced in your absence with little chance to advocate your case. Read More >


Types of penalties:

Jail for an cultivate prohibited plant charge: This is the most serious penalty for the charge of cultivate prohibited plant and involves full time detention in a correctional facility. Read more.

Intensive correction order for an cultivate prohibited plant charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Periodic detention for an cultivate prohibited plant charge (commonly known as weekend detention): This form of imprisonment ceased to be a sentencing option in October 2010.

Suspended sentence for an cultivate prohibited plant charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order for an cultivate prohibited plant charge. (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond for an cultivate prohibited plant charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines for an cultivate prohibited plant charge: When deciding the amount of a fine for a cultivate prohibited plant charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10 for an cultivate prohibited plant charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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