This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Selling a Controlled Plant
It is an offence in the ACT to sell a controlled plant. The maximum penalty ranges from fines of 300 penalty units to imprisonment for life, depending on the type and quantity of plants.
The Offence of Selling a Controlled Plant
The sale of controlled plants is divided into offences based on the quantity of plants sold. These offences are contained in Section 619 of the Criminal Code 2002 which states that a person commits an offence if they:
- Sell a cannabis plant (contrary to Section 619(8) of the Code), which carries a maximum penalty of a fine of 300 penalty units, imprisonment for 3 years or both;
- Sell a controlled plant other than a cannabis plant (contrary to Section 619(7) of the Code), which carries a maximum penalty of a fine of 1000 penalty units, imprisonment for 10 years or both;
- Sell a trafficable quantity of a controlled plant (contrary to Section 619(5) of the Code), which carries a maximum penalty of 1000 penalty units, imprisonment for 10 years or both;
- Sell a commercial quantity of a controlled plant (contrary to Section 619(3) of the Code), which carries a maximum penalty of a fine of 2500 penalty units, imprisonment for 25 years or both; or
- Sell a large commercial quantity of a controlled plant (contrary to Section 619(1) of the Code), which carries a maximum penalty of life imprisonment.
The various weights that constitute trafficable, commercial and large commercial quantities for controlled plants are set out in Schedule 2 of the Criminal Code Regulation 2005.
What is “Selling”?
To understand why you may be charged with this offence, it is important to acknowledge the broad definition given to the act of selling. The term “sell” is defined in section 600 of the Code which states that:
“Sell” includes:
- barter or exchange; and
- give to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise; and
- agree to sell.
If you have done any of the above in relation to providing a controlled plant to someone else, you may be charged with selling a controlled plant.
What Actions Might Constitute Selling a Controlled Plant?
Examples of selling a controlled plant include:
- You give your cousin a cannabis plant in exchange for his DVD collection of Entourage.
- Your brother catches you hosting a wild house party at your parents’ coast house. You ask him not to tell your parents and give him your 2 cannabis plants in return for his silence.
- You agree to sell your friend a number of coca plants. You have not given him the plants yet because he does not have the money on him but his neighbour overhears your conversation and calls police.
What the Police Must Prove
To convict you of selling a controlled plant, the prosecution must prove each of the following matters beyond a reasonable doubt:
- That you sold a plant; and
- That plant was a controlled plant; and
- That the quantity sold is equal to, or greater than, the quantity you are charged with selling.
Possible Defences for Selling a Controlled Plant
The common ways to defend this charge are:
- to maintain your innocence if you did not commit the act;
- to argue that you did not sell the plant;
- to argue that the plant was not a controlled plant; or
- to argue that the quantity of the plant is not sufficient to prove the offence with which you have been charged, for example you were charged with selling a trafficable quantity of cannabis plants but you only sold 9 plants (where the trafficable quantity is 10 or more plants).
Which Court Will Hear Your Matter?
These matters may be dealt with in either the ACT Magistrates Court or the ACT Supreme Court, depending on the quantity of the controlled plant you have been charged with selling.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.