Cultivating a Controlled Plant

It is an offence in the ACT to cultivate a controlled plant. The maximum penalty is a fine of 200 penalty units and/or 2 years imprisonment.

This offence includes cultivation of cannabis plants. However, cannabis is dealt with specifically in our sections Cultivating Cannabis and Cultivating Cannabis for Selling.

The Offence of Cultivating a Controlled Plant

The offence of cultivating a controlled plant is contained in Section 618(1) of the Criminal Code 2002 which states that a person commits an offence if they cultivate a controlled plant other than a cannabis plant.

The maximum penalty for this offence is a fine of 200 penalty units, 2 years imprisonment or both.

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 Code, 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 you may be charged with cultivation. 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.

What Actions Might Constitute Cultivating a Controlled Plant?

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.

What the Prosecution Must Prove

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

• that you cultivated a plant; and
• that plant was a controlled plant.

However, if you:

• intended to sell the plant or any its products; or
• believed that someone else intended to sell it or any of its products; or
• you cultivated a trafficable quantity (or more) of the plant

then you will likely be charged with Cultivating a Controlled Plant for Selling.

Possible Defences for Cultivating A Controlled Plant:

The common ways to defend this charge are:

• to maintain your innocence if you did not commit the act; or
• to argue that you were not cultivating the plant; or
• to argue that the plant was not a controlled plant.

Which Court Will Hear Your Matter?

This is a summary matter and will be dealt with in the ACT Magistrates Court.

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