Cultivate Prohibited Plant
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 partner’s 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;
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 encouraging you to 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 >
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.