Category Archives:Drug Cultivation

Four men have been arrested after police raided a 49-hectare property on Bungawalbin-Whipoire road at Gibberagee around 52 kilometres south-east of Lismore and seized 7,200 cannabis plants as well as 50 kilograms of cannabis heads which were allegedly held in 20 large-scale industrial grow-houses.

The men, 37-year old Giant Hong, 35-year old Trong Tung Tan, 34-year old Khac Ngoc Mai and 20-year old Kien Sy Ngo were charged with cultivating a commercial quantity of a prohibited plant and participating in a criminal group, and refused bail in Lismore Local Court.

Detectives from the NSW Drug and Firearms Squad described the operation as “sophisticated”, stating:

“This seizure is the largest industrial grow-house cannabis crop located by NSW police since 2010 – with officers successfully removing 7,200 plants worth nearly $22 million from the property”, said Detective Superintendent John Watson.

“Several thousand of these plants were mature and ready for harvest and were located by detectives inside 20 industrial grow-houses – each equivalent to the size of an Olympic swimming pool.”

“The property itself was used solely for the purpose of cannabis cultivation and was bordered by the Bungawalbin National Park, where the environment can be challenging for police.”

“While there are indications that yesterday’s seizure may be linked to the other sites uncovered in Northern NSW, enquiries into the operations of these suspected criminal syndicates are continuing.”.

“These arrests should send a strong message to criminals using regional NSW to grow cannabis crops that you will not go unnoticed”.

The offence of cultivating prohibited plants

Cultivating prohibited plants is an offence under section 23 of the Drug Misuse and Trafficking Act 1985.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You cultivated, or knowingly took part in the cultivation of, a plant, and
2. The plant was a prohibited plant.

If the prosecution is unable to prove these ‘elements’, you are entitled to be found not guilty.

‘Cultivating’ means to sow or scatter the seeds produced by prohibited plants, or to plant, grow, tend to, nurture or harvest the plants.

The most frequently prosecuted cultivation charges relate to cannabis plants.

However, the offence also relates to:

• Erythroxylon (a source of cocaine),
• Papaver Somniferum (opium poppy),
• Papaver orientale (Oriental poppies), and
• Papaver bracteatum (Iranian or Persian poppies).

It is important to bear in mind that you may have a valid legal defence to the charge, such as duress, which if properly raised must be disproved by the prosecution beyond a reasonable doubt.

If the prosecution is unable to do this, you must be acquitted.

Being lawfully licensed or authorised to cultivate the plant is also a defence, as is acting in accordance with a direction given by the Commissioner of Police,

Cultivating a prohibited plant by enhanced indoor means

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

1. You cultivated, or knowingly took part in the cultivation of, a plant,
2. The plant was a prohibited plant, and
3. The cultivation took place by way of enhanced indoor means.

‘Enhanced indoor means’ is where the cultivation:

1. Occurred within a building or structure, and
2. Involved any one or more of the following:

1. The nurture of the plant in nutrient-enriched water (with or without mechanical support),
2. The application of an artificial source of light or heat, or
3. Suspending the plant’s roots and spraying them with nutrient solution.

Cultivating a prohibited plant by enhanced indoor means for a commercial purpose

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

1. You cultivated, or knowingly took part in the cultivation of, a plant,
2. The plant was a prohibited plant,
3. The cultivation took place by way of enhanced indoor means, and
4. The cultivation was for a commercial purpose.

‘Commercial purpose’ means:

1. With the intention of selling it or any of its products, or
2. With the belief that another intended to sell it or any of its products.

Cultivating a prohibited plant by enhanced indoor means in the presence of children

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

1. You cultivated, or knowingly took part in the cultivation of, a plant,
2. The plant was a prohibited plant,
3. The cultivation took place by way of enhanced indoor means, and
4. The cultivation occurred in the presence of a child or children.

Cultivating a prohibited plant by enhanced indoor means for a commercial purpose in the presence of children

To establish the offence of cultivating a prohibited plant by enhanced indoor means, the prosecution must prove beyond reasonable doubt that:

1. You cultivated, or knowingly took part in the cultivation of, a plant,
2. The plant was a prohibited plant,
3. The cultivation took place by way of enhanced indoor means,
4. The cultivation was for a commercial purpose, and
5. The cultivation occurred in the presence of a child or children.

The penalties for cultivating cannabis

The maximum penalties that apply to drug cultivation offences depend on a number of factors, which are:

• The number of plants (cannabis) or weight of plants (Erythroxylon and poppies),
• Whether the plants were cultivated outdoors or by ‘enhanced indoor means’,
• If cultivated by ‘enhanced indoor means’, whether the prosecution is able to prove the plants were cultivated for a ‘commercial purpose’,
• Whether the plants were cultivated in the presence of a child, and
• The court in which the case is finalised.

Here are the maximum penalties:

Cultivate Prohibited Plant

	Number of Cannabis plants	Maximum Penalty
		Local Court	District Court
Small quantity	1 – 5	2 years imprisonment and/or $5,500 fine.	10 years imprisonment and/or $220,000 fine
Indictable quantity	6 – 249	2 years imprisonment and/or $11,000 fine.	10 years imprisonment and/or $220,000 fine
Commercial quantity	250 – 999	Not applicable	15 years imprisonment and/or $385,000 fine
Large commercial quantity	1000 or more	Not applicable	20 years imprisonment and/or $550,000

 

Cultivate Prohibited Plant by Enhanced Indoor Means

	Number of Cannabis plants	Maximum Penalty
		Local Court	District Court
Small quantity	1 – 5	2 years imprisonment and/or $5,500 fine.	10 years imprisonment and/or $220,000 fine
Indictable quantity	6 – 49	2 years imprisonment and/or $11,000 fine.	10 years imprisonment and/or $220,000 fine
Commercial quantity	50 – 199	Not applicable	15 years imprisonment and/or $385,000 fine
Large commercial quantity	200 or more	Not applicable	20 years imprisonment and/or $550,000

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose

	Number of Cannabis plants	Maximum Penalty
		Local Court	District Court
Small quantity	1 – 5	Not applicable	10 years imprisonment and/or $220,000 fine
Indictable quantity	6 – 49	Not applicable	10 years imprisonment and/or $220,000 fine
Commercial quantity	50 – 199	Not applicable	15 years imprisonment and/or $385,000 fine
Large commercial quantity	200 or more	Not applicable	20 years imprisonment and/or $550,000

Cultivate Prohibited Plant by Enhanced Indoor Means in the Presence of Child

	Number of Cannabis plants	Maximum Penalty
		Local Court	District Court
Small quantity	1 – 5	2 years imprisonment and/or $5,500 fine.	12 years imprisonment and/or $264,000 fine
Indictable quantity	6 – 49	2 years imprisonment and/or $11,000 fine.	12 years imprisonment and/or $264,000 fine
Commercial quantity	50 – 199	Not applicable	18 years imprisonment and/or $462,000 fine
Large commercial quantity	200 or more	Not applicable	24 years imprisonment and/or $660,000

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose in the Presence of Child

	Number of Cannabis plants	Maximum Penalty
		Local Court	District Court
Small quantity	1 – 5	Not applicable	18 years imprisonment and/or $462,000 fine
Indictable quantity	6 – 49	Not applicable	18 years imprisonment and/or $462,000 fine
Commercial quantity	50 – 199	Not applicable	18 years imprisonment and/or $462,000 fine
Large commercial quantity	200 or more	Not applicable	24 years imprisonment and/or $660,000

However, it is important to bear in mind that these are the maximum penalties, and the court has discretion to apply any of the following penalty-types:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order

Going to court for cannabis cultivation?

If you or a loved-one has been charged with cannabis cultivation, call Sydney Drug Lawyers anytime on (02) 9261 8883 to arrange a free first consultation or a prison visit with one of our experienced defence lawyers during which we will explain the legal situation, the available options and the best way forward, and fight for the optimal outcome whatever the situation may be.

Queensland doctors will be able to prescribe medicinal cannabis to patients from March next year, under new legislation that passed by the state parliament on Wednesday night.

The Public Health (Medicinal Cannabis) Bill 2016 – which passed unanimously – establishes laws described as the most flexible in the country.

Accessing medicinal cannabis

Under the new laws, patients can access cannabis in two ways.

Specialist doctors, such as oncologists and paediatric neurologists can prescribe medical marijuana to patients directly, without the need for additional approval from Queensland Health.

Other doctors, including GPs, will be able to prescribe the medicine with certain conditions after applying to the health department for permission.

“Ground breaking” laws

Queensland health minister Cameron Dick said the bill will change “the paradigm for seriously ill patients” who are currently forced to obtain cannabis products illegally.

The minster said the legislation provides access to “both synthetic and botanically derived” medicinal cannabis.

Mr Dick said patients can access the drugs prior to the enactment of the new laws in March, under changes made to the Health (Drugs and Poisons) Regulation last year.

Currently, one patient in Queensland is legally using medicinal cannabis – a teenager from the Brisbane suburb of Loganholme was given approval earlier this year to treat a brain tumour.

No local supply

However, no medicinal cannabis products are currently produced legally in Queensland, and civil libertarians are calling for a local industry to be established.

Michael Cope, spokesperson for the Queensland Council for Civil Liberties, told the ABC that medical marijuana products are only manufactured in a few overseas countries. He said the products are extremely difficult to obtain and very expensive.

Criticism of the legislation

But some medicinal cannabis advocates are critical of the reforms.

Deb Lynch, secretary of the Medical Cannabis Users Association of Australia (M.C.U.A), told Sydney Criminal Lawyers® that while the legislation is a good first step, “it doesn’t go far enough.”

According to Ms Lynch, the application process for doctors who want to prescribe the medicine is so rigorous that few will be approved.

Doctors who apply will have to prove they have a thorough knowledge of medical marijuana treatments. Doctors will also need to be available for follow up visits three months after the initial consultation to provide a report on the patient and the medicine.

This situation will lead to private patients being able to find a doctor who can supply the medication, while public patients will have a lot of difficulty obtaining the drugs.

“They’re just going to drive patients underground again, to either home grow and risk prosecution themselves or to the black market,” Ms Lynch said, adding there needs to be an amnesty for current patients.

The application process also places full responsibility onto doctors for any side effects resulting from cannabis medications.

While Ms Lynch thinks this is a good idea, she questions why the government is specifically isolating cannabis for such stringent regulations and not all pharmaceutical drugs.

Current producers of medical marijuana

And as for those who are illegally producing medicinal marijuana products for patients currently using it, the new legislation could mean an end to business, or worse.

“They could end up in gaol for decades, myself included, because I actually make ointments I send to other scleroderma patients,” said Ms Lynch, who suffers from scleroderma herself. “So I risk going to gaol for 15 to 20 years for helping others.”

Queensland’s medicinal cannabis trials

As of July this year, parents of children with severe drug-resistant epilepsy in Queensland have been able to register for medicinal cannabis trials that are set to begin before the end of the year.

A research team from Lady Cilento Children’s Hospital in Brisbane will lead the trials, which will involve the use of Epidiolex – a liquid form of pure cannabidiol (CBD) – produced by UK-based pharmaceutical company GW Pharmaceuticals.

Ms Lynch questions why the trials are limited to just one form of medicinal cannabis, as “CBD medicines overseas haven’t been as successful as the ones we are getting here now illegally.”

CBD is one of 113 active cannabinoids contained in the cannabis plant, all of which act on receptors in the brain.

Children suffering severe seizures need access to other cannabinoids, such as THCA, CBN and THC, Ms Lynch believes. “They’re seizing and they’re just not stopping,” she said. “It’s the THC that’s actually bringing them out of it.”

Medical marijuana developments around Australia

Marijuana reform is not just isolated to Queensland – it’s been a big year for the plant across Australia.

In February this year, federal parliament passed the Narcotic Drugs Amendment Bill 2016 allowing for the legal cultivation, manufacture and distribution of medical marijuana.

A national regulatory body will be established to oversee the market that will provide medicinal cannabis to patients with a valid prescription.

Both the NSW and Victorian state governments have already begun cultivating cannabis crops.

Victoria was the first state to legalise medicinal cannabis in April.

The Victorian Access to Medicinal Cannabis Act 2016 allows for the manufacture, supply and access to medical marijuana, but it will be restricted to children suffering severe epilepsy for the time being.

The Tasmanian state government announced in April that specialist doctors would be able to prescribe medicinal cannabis to patients with chronic illnesses starting next year.

However on Tuesday, Tasmanian parliament voted down a Greens’ motion to establish a register of medicinal cannabis users who would be quarantined from persecution prior to the establishment of the state’s Controlled Access Scheme.

In NSW, doctors have been able to prescribe medicinal cannabis to patients with a range conditions since August 1.

Under amendments to the Poisons and Therapeutic Goods regulations, patients who have exhausted other standard treatment options for illnesses – such as arthritis, epilepsy and schizophrenia – can access the medicine if they receive approval from a NSW Health panel of experts.

And on August 31, the Therapeutic Goods Administration published their formal decision that legalises the medicinal use of the plant as of November this year.

The only thing fire fighters were able to salvage from a house fire that destroyed a home in suburban Moorebank, was a small bag of clothing.

But while fighting the flames, emergency services couldn’t help but notice a sophisticated hydroponic set-up, and the 34-year-old man occupier arrived just as police discovered that three rooms were allegedly being used to grow cannabis.

Reports say the man lived in the house with his partner and two young children, and although no one was home during the blaze, a litter of three puppies tragically lost their lives.

Charges laid

The man was later arrested and charged with cultivating a prohibited plant by enhanced indoor means. He was granted conditional bail and will appear in Liverpool Local Court next month. He may face additional charges of exposing a child to the cultivation of a prohibited plant.

Much of the ‘fruit’ of the man’s alleged efforts has been destroyed by the fire, but if it is alleged that there was more than a small quantity of cannabis plants (5 plants) but not more than a commercial quantity (250 plants), he could face imprisonment of up to 10 years as well as a hefty fine.

If it is alleged to be more than a commercial quantity but less that the large commercial quantity (1000 plants), he faces up to 15 years in prison. And if it is more than a large commercial quantity, the maximum prison term is 20 years.

Although the cause of the fire is yet to be determined, police suspect it was started by an electrical fault caused by the hydroponic set up.

Neighbours’ photos of the blaze show thick plumes of smoke, with one neighbour trying to extinguish the flames using a garden hose.

It is the second Sydney house allegedly containing cannabis crops to go up in flames in as many months.

Police recently raided a property in Peakhurst, in Sydney’s south, seizing approximately 70 cannabis plants with an estimated value of $200,000. A 25-year old man was arrested and charged with cannabis cultivation over that incident.

Several days after charges were laid, the house was severely damaged in a fire which police are treating as ‘suspicious’. Investigators say there was evidence of a flammable liquid being used in a several rooms. Police are determining whether arson charges should be pressed over the fire.

It was supposed to be a relaxing summer holiday on the Gold Coast – but family man Dieter Winkler, his wife and their five children were shocked to discover that the Burleigh Heads cottage they had rented was a drug den.

The family were preparing to enjoy a barbecue when 10 armed police officers smashed down the door and raided the property. After being interrogated for five hours and having their possessions ‘ramsacked,’ the Winklers were stunned to discover the secret behind a locked room – which a female owner had told them was ‘off-limits’ due to an electrical fault.

The room, which was located next to the bedroom shared by his five children – housed eight cannabis plants in an extensive hydroponic set up. Authorities described the room as a ‘fire waiting to happen’ due to dodgy electrical wiring which fed lights 24 hours a day.

According to Mr Winkler, police claimed to be unaware that the property was being rented out to holidaymakers; which raises questions about the quality of intelligence checking, investigation and surveillance techniques.

Mr Winkler said his family were treated like criminals, with his children – the youngest aged 9 – and 72-year-old mother, witnessing the terrifying raid.

Police have used the incident to highlight the risks of renting properties from unknown owners, with a police spokesperson stating that ‘people need to understand that you don’t know who the homeowner is, or if you’re renting a room who you could be staying with.’

The holiday rental company AirBnB agreed to reimburse the Winklers the $1800 paid for rental– as well as $2,600 spent to secure alternative last minute accommodation elsewhere.

But the experience ruined the family’s first get together in two years, with Mr Winkler describing it as ‘the worst holiday’ and vowing to never use Airbnb again.

Homeowners Fall Victim to Drug Cultivating Tenants

On the flip side, a Victorian man found his investment property trashed and abandoned by drug cultivators late last year.

29-year-old Trent Lister purchased the Geelong property with his mother and partner, but upon returning to conduct a routine inspection in August, discovered that the previous tenants had rewired electrical circuits, removed cupboards and fixtures, and cut holes in walls, floors and the roof. Doors had been ripped out to make way for plants, and water had been redirected around the house.

The occupants had then absconded, leaving Mr Lister to pay thousands of dollars for the damage cause. He says that his family may face bankruptcy due to the high cost of repairs.

Mr Lister says that he conducted all necessary background checks prior to renting the property – he had met with the tenants, obtained copies of their driver licences and details of their previous rental history. But the licences and rental history turned out to be false.

While taking taken DNA samples from the house, police advised Mr Lister that they are unlikely to catch the culprits.

Knowing the Law

Residents and homeowners who use property to produce, supply or cultivate commercial quantities of illicit drugs can face heavy penalties under the law.

Properties used to manufacture or cultivate drugs fall within the definition of ‘drug premises’ under the Drug Misuse and Trafficking Act 1985.

Apart from the presence of drugs, a court can look at the following factors when deciding whether a particular property is a ‘drug premises’:

• The fact that a police officer who was authorised to enter the premises was prevented or obstructed from doing so;
• Evidence of doors being fitted with bolts, bars, chains or other devices to obstruct entry;
• Evidence of a person acting as a lookout to warn persons of police officers or other persons;
• Evidence of syringes or other devices used for the supply, manufacture or use of a prohibited drug;
• Evidence of unlawful firearms or prohibited weapons;
• Evidence of large amounts of money that cannot be accounted for by the owner or occupier;
• Evidence of persons on the premises being affected by drugs;
• Evidence of drug cultivation equipment such as high powered lights, fluorescent lights, light units and growing chambers;
• Fans and vents installed in unusual spots;
• Evidence of high electricity consumption;
• Evidence that electricity is being sourced from an illegal source;\Evidence of prohibited plants or seeds being found on the premises.

Property owners who knowingly allow another to use their property as ‘drug premises’ face a maximum penalty of 12 months imprisonment and/or a fine of $5,500 under section 36Y of the Act. For a second or subsequent offence, the penalty increases to 5 years imprisonment and/or a fine of $55,000.

Organising, conducting or assisting with the organisation of drug premises is an offence which carries the same penalties. A person can be found guilty of this offence there is sufficient evidence to show that they acted as a lookout, guard, or door attendant at the premises.

Even simply entering or being on premises which you know are being used as drug premises can result in these heavy penalties, unless you are able to establish that you were on, or entering or leaving the premises, for a lawful purpose or with a lawful excuse.