Cultivating Cannabis (WA)

The criminal laws about cannabis use in Western Australia changed in 2011. The new legislation seeks to avoid criminalising the use of cannabis where a small quantity of the drug is possessed and there have been no attempts to supply it to others. A person caught with a small amount of cannabis in Western Australia will be dealt with by way of a Cannabis Intervention Requirement (CIR), which requires them to undertake a Cannabis Intervention Session within a period of 28 days. No criminal record results from being issued with a CIR. However, tough penalties remain in place for those caught cultivating cannabis with the intent to supply it to others. A mandatory sentencing regime also exists in relation to certain offences involving cultivation.

Cannabis can be cultivated legally in Western Australia if it is done under the federal licensing scheme for medicinal purposes.

Cultivating cannabis offences

Under the Misuse of Drugs Act 1981 it is an offence in Western Australia to possess or cultivate a prohibited plant with the intent of selling or supplying the plant (Section 7(1)). This offence attracts a maximum penalty of $20,000 fine or a term of imprisonment for 10 years when it is finalised in the District Court or Supreme Court. A summary court (Magistrates Court) can impose a fine of up to $5000 or imprisonment for up to four years. Section 11 of the creates a presumption that a person has the intent to sell or supply a prohibited plant if they cultivate more than 20 cannabis plants.

Cultivating cannabis or other prohibited plants is an offence under Section 7(2) of the Misuse of Drugs Act. This offence carries a penalty of $2000 or imprisonment for up to two years. Cultivate is defined as ‘grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant’

Section 7A also makes it an offence to sell or supply a thing knowing it will be used in the hydroponic cultivation of a prohibited plant.

Mandatory sentencing

Western Australia has a mandatory sentencing regime for drug offences affecting children.

Supply to a child

Where an adult supplies a prohibited plant to a child in Western Australia, they must be given a sentence that includes:

• For a first offence, imprisonment, suspended imprisonment, or conditional suspended imprisonment;
• For a subsequent offence – imprisonment for at least six months that is not suspended.

Cultivating cannabis that endangers a child

Where an adult cultivates a prohibited plant in a way that endangered the life, health or safety of a child under 16 in Western Australia, then they must be sentenced to:

• For a first offence, imprisonment, suspended imprisonment or conditional suspended imprisonment;
• For a subsequent offence, at least six months imprisonment, which is not suspended.

Cultivating cannabis that harms a child

Where an adult is found guilty of cultivating prohibited plants in circumstances where it caused bodily harm to a child under 16, then they must be sentenced to imprisonment for a period of at least 12 months that is not suspended.

Applying to grow cannabis

Under a federal licensing scheme, any person in Western Australia can apply for a licence to grow cannabis for medicinal purposes. To be granted a licence to grow cannabis, the applicant must show that they have a suitable location, facilities and proposed security measures to ensure the cannabis is grown in compliance with the Narcotic Drugs Act 1967. The person must show that they are fit and proper and must not have committed a serious offence in the last 10 years. They must demonstrate that they will take all necessary steps to ensure the physical security of the cannabis.

In 2017, the first licence to grow cannabis in Western Australia was granted to the company Auscann. Auscann now operates a secure outdoor cannabis farm in Western Australia.

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