Cultivation of Narcotic Plants

In Victoria, the maximum penalty for the offence of Cultivation of Narcotic Plants depends on the quantity of the plants being cultivated. Under the Drugs, Poisons and Controlled Substances Act 1981, there are three cultivation offences which are distinguished by the quantity of the narcotic plant. These are:

1. Cultivation of Narcotic Plants;
2. Cultivation of Narcotic Plants – Commercial Quantity; and
3. Cultivation of Narcotic Plants – Large Commercial Quantity.

If the quantity of the narcotic plant is not classified as a commercial or large commercial quantity, and the Court is satisfied, on the balance of probabilities, that the plants are not being cultivated for trafficking, the maximum penalty for this offence is imprisonment for one year or a fine of up to 20 penalty units. This means that you intended to keep the narcotics yourself and not provide them to anyone else.

If the Magistrate is satisfied that the plants are being used for trafficking, the maximum penalty is 15 years’ imprisonment.

If the quantity of the narcotic plant is classified as commercial, the maximum penalty for this offence is 25 years’ imprisonment.

If the quantity of the narcotic plant is classified as large commercial, the maximum penalty for this offence is life imprisonment and a fine of up to 5000 penalty units.

Armstrong Legal’s expert criminal law team stands ready to advise you on the ways that you might avoid jail if you have been charged with the Cultivation of Narcotic Plants.

The Offence of Cultivation of Narcotic Plants

The offence of Cultivating Narcotic Plants contained in sections 72, 72A and 72B of the Drugs, Poisons and Controlled Substances Act 1981 which state:

A person who, without being authorised by or licenced under this Act

• cultivates or attempts to cultivate a narcotic plant;
• cultivates or attempts to cultivate a narcotic plant in a quantity of a drug of dependence that is not less than the commercial quantity applicable to that narcotic plants;
• cultivates or attempts to cultivate a narcotic plant in a quantity of a drug of dependence that is not less than the large commercial quantity applicable to that narcotic plants,

What Does Cultivate Mean?

Under section 70 of the Drugs, Poisons and Controlled Substances Act 1981, ‘cultivate’ in relation to a narcotic plant includes:

• Sowing a seed of a narcotic plant; or
• Planting, growing, tending, nurturing or harvesting a narcotic plant; or
• Grafting, dividing or transplanting a narcotic plant.

This definition also allows for other actions not expressly stated in the definition.

Quantities of Narcotic Plants

Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 sets out what is meant by ‘Commercial Quantity’ and ‘Large Commercial Quantity’ depending on the type of drug.

For example, the Commercial Quantity for Cannabis is at least 25kg or 100 plants. The Large Commercial Quantity is at least 250kg or 1000 plants.

What Actions Might Constitute Cultivating Narcotic Plants?

Growing cannabis plants in your garden – either free-range or with a hydroponic set up.

What the Police Must Prove

To convict a person of Cultivation of Narcotic Plants, the Prosecution must prove each of the following elements beyond a reasonable doubt:

• They intentionally cultivated a plant;
• The plant was a narcotic plant;
• They intended to, or did, cultivate not less than a commercial quantity or large commercial quantity of the plant (if the quantity alleged is a commercial or large commercial quantity).

Possible Defences for Cultivation of Narcotic Plants

Pursuant to section 72C of the Drugs, Poisons and Controlled Substances Act 1981, it is a defence to a charge under these sections that, having regard to all the circumstances, you satisfy the Court on the balance of probabilities of the following factors:

• You did not know or suspect the narcotic plant was, in fact, a narcotic plant; and
• You could not reasonably have been expected to know that the narcotic plant was a narcotic plant.

It is also a defence if the accused has a licence or permit to produce the narcotic plant.

Which Court Will Hear Your Matter?

So long as the charge is not for the Cultivation of Narcotic Plants in a commercial or large commercial quantity, the charge will generally be heard in the Magistrates’ Court of Victoria. If the quantity of narcotic plants is a commercial or large commercial quantity, the matter will be heard at the County Court of Victoria.

Common Questions

Will I receive a criminal conviction for cultivation?

Yes, you can receive a conviction and criminal record for this offence, however, the circumstances of the offending, whether you have a criminal record, your personal background, and other mitigating factors will influence this. 

In VIC, a Court can impose any of the following penalties for this charge.

• Jail
• Community Corrections Orders (CCO)
• Fine
• Adjourned undertaking

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 might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for a drug offence can completely rule out certain career paths, including a range of government employment options and can make international travel challenging. Drug offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to jail for cultivation?

Yes, you can be sentenced to a term of imprisonment for this offence, as it is a serious drug offence in Victoria. Imprisonment, however, is not the only outcome available to a Court and penalties will range from good behaviour bonds to fines, to community corrections order, with prison being a sentence of last resort. The circumstances of the offending, whether you have a criminal record, your personal background, and other mitigating factors will influence the outcome. 

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