Cultivating a Controlled Plant For Selling

In the ACT it is an offence to cultivate a controlled plant for the purpose of selling it or any of its products. This includes cultivating a controlled plant with the belief that someone else intends to sell it or any of its products. You can be convicted of this offence even if you have only cultivated a single controlled plant. The penalties for this offence range from a fine of 1000 penalty units and/or 10 years imprisonment for cultivating a single controlled plant, to life imprisonment for cultivating a large commercial quantity of controlled plants.

Penalties the court can impose:

• Imprisonment (Jail – Full Time)
• Intensive Correction Order (previously Periodic Detention)
• Suspended Sentence
• Community Service Order (CSO)
• Good Behaviour Order
• Fine
• Section 17 (ACT): Non-conviction Order

The Offence of Cultivating a Controlled Plant For Selling

The offence of cultivating a controlled plant for selling is contained in section 616 of the Criminal Code 2002 which states that a person commits an offence if they cultivate a controlled plant:

• with the intention of selling the plant or any of its products; or
• believing that someone else intends to sell the plant or any of its products.

The penalties for this offence range from a fine of 1,000 penalty units to life imprisonment, depending on the quantity cultivated. The specific penalties are set out below.

What is Cultivation?

To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of cultivation. The terms “cultivates” and “cultivation” are defined in section 615 of the Criminal Code 2002 which states that:

A person “cultivates” a plant if the person:

• engages in its cultivation; or
• exercises control or direction over its cultivation; or
• provides or arranges finances for its cultivation.

“Cultivation” of a plant includes:

• planting a seed, seedling or cutting of the plant or transporting the plant; or
• nurturing, tending or growing the plant; or
• guarding or concealing the plant (including against interference or discovery by humans or natural predators); or
• harvesting the plant (including picking any part of the plant or separating any resin or other substance from the plant).

If you have been involved in any of the above and you either:

• intended to sell the plant or any of its products; or
• believed someone else intended to sell the plant or any of its products

then you may be charged with cultivating a controlled plant for selling. It is not necessary for you to have been involved in the cultivation from start to finish or to have been solely responsible for the cultivation in order to be charged with cultivation.

Because the offence includes cultivation for the purpose of selling products of the plant, it is also necessary to understand what this encompasses. The term “product” is also defined in section 615 of the Code, which states that  products include:

• a seed of the plant; and
• a part of the plant (whether live or dead); and
• a substance separated from the plant.

What Actions Might Constitute Cultivating a Controlled Plant for Selling?

Examples of cultivating a controlled plant include:

• scattering seeds of a controlled plant in a secluded area of your parents’ 500-hectare property;
• watering your partner’s controlled plants;
• planting a controlled plant you got from a friend in one of your favourite pots and ensuring it gets enough water and sunlight;
• concealing controlled plants to avoid other people discovering them; or
• harvesting the buds from a controlled plant for your brother to consume.

Doing any of the above with the intention of selling the plant/its products, or believing that someone else intends to sell the plant/its products, will constitute cultivating a controlled plant for selling. Cultivation does not require you to have been involved from start to finish or to have been solely responsible for the cultivation.

What the Police Must Prove

To convict you of cultivating a controlled plant for selling, the prosecution must prove each of the following matters beyond reasonable doubt:

• that you cultivated a plant; and
• that plant was a controlled plant; and
• that you either:
  • intended to sell the plant; or
  • intended to sell any of the plant’s products; or
  • believed someone else intended to sell the plant; or
  • believed someone else intended to sell any of the plant’s products; and
• that the quantity cultivated is equal to, or greater than, the quantity that you have been charged with cultivating.

Although the prosecution has to prove beyond reasonable doubt that you intended (or believed someone else intended) to sell the plant/its products, it should be noted that there is a legal presumption that this was in fact the case if you cultivated a trafficable quantity (or more) of the controlled plant. This presumption is contained in Section 617 of the Code. What this means is that if you cultivated a trafficable quantity of the controlled plant, the onus is on you to rebut the presumption and show that it was not your intention to sell or have someone else sell the plant/its products. This presumption exists because it is presumed that a trafficable quantity is too much to be merely for personal use, and therefore must be intended for sale.

Possible Defences for Cultivating a Controlled Plant for Selling

A person charged with this can argue in their defence that:

• they were not cultivating the plant; or
• the plant was not a controlled plant; or
• they did not cultivate the plant with the intention of selling it or any of its products, and did not believe someone else had the intention of selling it or any of its products.

Which Court Will Hear Your Matter?

This is an indictable matter and will be heard in the ACT Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.