The Offence of Growing Cannabis in NSW

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.