Cultivate Prohibited Plant

The maximum penalty for Cultivating a Prohibited Plant depends on the type of plant and the quantity. The maximum penalty for an amount less than or equal to a small quantity is 15 years imprisonment when the plant is not Cannabis or 10 years if the amount is Cannabis plant or leaf.

For an amount being more than or equal to an indictable quantity but less than a commercial quantity the maximum penalty is 15 years imprisonment, when the plant is not Cannabis, or 10 years imprisonment when the plant is Cannabis plant or leaf.

For an amount that is no less than a large commercial quantity, the maximum penalty is 25 years imprisonment, when the plant is not Cannabis, or 20 years if the amount is Cannabis plant or leaf.

The quantity categories in respect to Cannabis are:

• Small quantity: 5 plants;
• Indictable quantity: 50 plants;
• Commercial quantity: 250 plants; and
• Large commercial quantity: 1,000 plants.

What is Cultivating a Prohibited Plant?

The offence of Cultivating a Prohibited Plant is set out in section 23 of the Drug Misuse and Trafficking Act 1985 (NSW). It criminalises the cultivation or growing of a prohibited plant. This includes actions such as sowing, scattering the seeds of the plant, tending to, nurturing, planting or harvesting the plant. The legislation specifically provides that: 

A person who—

Cultivates, or knowingly takes part in the cultivation of, a prohibited plant, is guilty of an offence.

The following acts constitute Cultivating a Prohibited Plant:

• Scattering Cannabis seeds in a secluded area on your farm;
• Watering your partner’s Opium Poppy plants whilst they are on holiday.

What Must be Proven?

For a person to be found guilty of Cultivating a Prohibited Plant, the Prosecution must prove each of the following matters beyond a reasonable doubt:

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

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

Depending on what quantity and type of prohibited plant the offence will be either a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or accused elects to have the matter dealt with in the District Court or Strictly Indictable offence.

What are Possible Defences?

The following defences may be available:

• Duress 
• Necessity

Common Questions about Cultivating a Prohibited Plant

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely but will heavily depend on the quantity of the plant and what jurisdiction hears the matter, whether that be in the Local or District Court.

In NSW, a Court can impose any of the following penalties for a charge of Cultivating a Prohibited Plant:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for Cultivating a Prohibited Plant might jeopardise your job, any future jobs or make it difficult to obtain visas for overseas travel. Offences of this nature may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Offences of this nature will likely attract a term of imprisonment if convicted. 

What if I was not aware that the plant was prohibited or that it was being grown on my property?

If you successfully argue that you did not know (and could not reasonably be expected to have known or suspected) that the plant was a prohibited plant or that it was being cultivated on your property, the prosecution will not be able to prove the offence beyond a reasonable doubt.

Aside from Cannabis, what are other examples of a Prohibited Plant?

Opium Poppy which is used to produce Heroin and the Coca plant which is used to produce Cocaine are also common examples of plants that people are charged with cultivating. 

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