Cultivating Cannabis (Vic)
Since 2016, it has been legal to grow cannabis for medicinal purposes in Australia. Since then, the Victorian Government has made plans for the state to become the centre for medical cannabis in Australia, with the growing industry expected to create jobs, investment opportunities and develop a range of products to meet patients’ needs. However, cultivating cannabis remains a serious criminal offence in Victoria if it is not done for medicinal use only and under very tight controls and. This article will outline offences relating to cultivating cannabis in Victoria as well as the regulations for doing so legally.
Medicinal cannabis in Victoria
The Narcotic Drugs Act 1967 has now been amended so that a person may apply for a medicinal cannabis licence anywhere in Australia (Section 8E). Once a person has obtained such a licence, they may obtain, cultivate and produce cannabis plants or cannabis resin for medicinal purposes. This must be done under strict controls. The person must have a suitable location, suitable facilities and proposed security arrangement. In order to obtain a licence, they must also show that they are a fit and proper person, have not been found guilty of a serious criminal offence in the last 10 years and that they will take all steps necessary to ensure the cannabis is kept physically secure. A licence will only be issued if the Health Department is satisfied that it is appropriate to issue a licence.
Cannabis plants can be used to treat a number of conditions including epilepsy, MS, chronic pain and HIV.
Patients in Victoria requiring medicinal cannabis products may obtain prescriptions for suitable products from their doctor if the doctor considers it likely that the patient will benefit from such a product. There is currently only one medicinal cannabis product approved for use in Australia and patients who require other products which have to be imported need the approvals of the Commonwealth Therapeutic Goods Administration and the Department of Health prior to receiving prescriptions for these products.
The offense of cultivating cannabis in Victoria
Cultivating cannabis is an offence in Victoria (as in other states) when it is done otherwise than under the Federal licencing scheme. In Victoria, it is an offence under the Drugs, Poisons and Controlled Substances Act 1981 to cultivate a narcotic plant or attempt to do so (Section 72B). Courts have interpreted the term ‘cultivation’ to include ‘all activities associated with production from the soil, including preparing the soil, sowing, fertilising, tending and caring for the plants, and finally harvesting the crop.’ (King CJ in R v Giogio and Romeo).
Cultivation can occur on a tiny scale, with a single plant in someone’s home, or on a medium, large or huge scale, with sophisticated hydroponic systems used to harvest plants or outside on a rural property. ‘Cultivation by enhanced indoor means’, such as a hydroponic system forms a separate offence in some jurisdictions)
In Victoria, the maximum penalties courts can impose for cultivating cannabis offences are as follows:
|Any number or quantity||Cultivating narcotic plant||Maximum 20 penalty units or 12 months imprisonment if court is satisfied the plants were not intended for trafficking purposes
In all other case maximum 15 years imprisonment
|More than 100 plants or 25 kilograms||Cultivating commercial quantity narcotic plant||Maximum 25 years imprisonment|
|More than 1000 plants or 250 kilgrams||Cultivating large commercial quantity narcotic plant||Maximum life imprisonment|
As the above table shows, offences involving the cultivation of cannabis include a wide range of offending behaviours with different levels of culpability and varying maximum penalties. While the maximum penalties referred to above are terms of imprisonment and fines, courts can also impose other, lesser sentences. A charge involving a small amount of marijuana grown for personal use (whether recreational or medical), may be dealt with through a Good Behaviour Bond or even through a Diversionary Program. On the other hand, where a person is growing the plant in the context of a commercial operation without a licence, a lengthy term of imprisonment can be expected.
Cultivation of cannabis without a licence is still a serious criminal offence in Victoria. As the circumstances of every alleged offence are different, it is important to seek legal advice as soon as possible. If you have been charged with a cannabis offence, please contact Armstrong Legal.