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Section 23 Drug Misuse and Trafficking Act 1985
Cultivating, Supplying or Possessing Prohibited Plants

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Section 23 of the Drug Misuse and Trafficking Act 1985 is Prohibited Plants and is extracted below.

Cultivating cannabis plants by enhanced indoor means is an offence under section 23(1A)(a) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of:

  1. 10 years in prison for less than 50 plants if the case is finalised in a higher court, such as the District Court, or 2 years in prison if it is finalised in the Local Court
  2. 15 years in prison for 50 to 199 plants, or
  3. 20 years in prison for 200 plants or more.

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

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

‘Cultivating’ includes sowing or scattering seeds, planting, growing, tending, nurturing or harvesting.

You ‘knowingly took part in’ cultivation if you:

  1. Took or participated in any step of the cultivation process or caused any such step to be taken
  2. Provided or arranged finance for any step in the cultivation process, or
  3. Provided the premises for any step in the cultivation process, or suffered or permitted any such step to be taken in a premises for which you were the owner, lessee, occupier or manager.

Cultivation is ‘by enhanced indoor means’ if it occurs:

  1. Inside a building or structure, and
  2. Involves one or more of the following:

(a) The nurture of the plant in nutrient-enriched water
(b) The application of an artificial light or heat source
(c) Suspending the plant’s roots and spraying them with nutrient solution.

You are not guilty if you had a valid licence, permit or authorisation to cultivate the plant.

Defences to the charge include duress and necessity.

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Cultivating prohibited plants by enhanced indoor means (other than cannabis) is an offence under section 23(1A)(a) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of:

  1. 15 years in prison for less than a commercial quantity if the case is finalised in a higher court, such as the District Court, or 2 years in prison if the case is finalised in the Local Court
  2. 20 years in prison for at least a commercial quantity, but less than a large commercial quantity, or
  3. Life in prison for a large commercial quantity.

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

  1. You cultivated a plant, or you knowingly took part in the cultivation of a plant
  2. The plant was a prohibited plant other than cannabis, and
  3. The cultivation occurred by enhanced indoor means.

Prohibited plants other than cannabis include:

  1. Erythroxylon (a source of cocaine)
  2. Papaver Somniferum (opium poppy)
  3. Papaver Orientale (Oriental poppies), and
  4. Papaver Bracteatum (Iranian or Persian poppies).

‘Cultivating’ includes sowing or scattering seeds, planting, growing, tending, nurturing or harvesting.

You ‘knowingly took part in’ cultivation if you:

  1. Took or participated in any step of the cultivation process or caused any such step to be taken
  2. Provided or arranged finance for any step in the cultivation process, or
  3. Provided the premises for any step in the cultivation process, or suffered or permitted any such step to be taken in a premises for which you were the owner, lessee, occupier or manager.

Cultivation is ‘by enhanced indoor means’ if it occurs:

  1. Inside a building or structure, and
  2. Involves one or more of the following:

(a) The nurture of the plant in nutrient-enriched water

(b) The application of an artificial light or heat source

(c) Suspending the plant’s roots and spraying them with nutrient solution.

You are not guilty if you had a valid licence, permit or authorisation to cultivate the plant.

Defences to the charge include duress and necessity.

_________________________________________________________________________________________________

Cultivating cannabis plants by enhanced indoor means for a commercial purpose is an offence under section 23(1A)(b) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of:

  1. 10 years in prison for less than 50 plants
  2. 15 years in prison for 50 to 199 plants, or
  3. 20 years in prison for 200 plants or more.

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

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

‘Cultivating’ includes sowing or scattering seeds, planting, growing, tending, nurturing or harvesting.

You ‘knowingly took part in’ cultivation if you:

  1. Took or participated in any step of the cultivation process, or caused any such step to be taken
  2. Provided or arranged finance for any step in the cultivation process, or
  3. Provided the premises for any step in the cultivation process, or suffered or permitted any such step to be taken in a premises for which you were the owner, lessee, occupier or manager.

Cultivation is ‘by enhanced indoor means’ if it occurs:

  1. Inside a building or structure, and
  2. Involves one or more of the following:

(a) The nurture of the plant in nutrient-enriched water

(b) The application of an artificial light or heat source

(c) Suspending the plant’s roots and spraying them with nutrient solution.

Cultivation is for a ‘commercial purpose’ if it occurred:

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

You are not guilty if you had a valid licence, permit or authorisation to cultivate the plant.

Defences to the charge include duress and necessity.

If you would like an experienced drug defence lawyer to provide accurate advice and outstanding representation for your Prohibited Plants case, call Sydney Criminal Lawyers® today on (02) 9261 8881 for a free first appointment.

Our criminal lawyers are experts in defending drug charges and have a proven track record in obtaining superior results in all types of drug cases.

The Legislation

23 Offences with respect to prohibited plants

(1) A person who:
(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant,
(b) supplies, or knowingly takes part in the supply of, a prohibited plant, or
(c) has a prohibited plant in his or her possession,
is guilty of an offence.

(1A) A person who:
(a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is:
(i) not less than the small quantity applicable to the prohibited plants, and
(ii) less than the commercial quantity applicable to those prohibited plants, and
(b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose,
is guilty of an offence.

(1B) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the small quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly.

(1C) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly.

(2) A person who:
(a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants,
(b) supplies, or knowingly takes part in the supply of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, or
(c) has a number of prohibited plants in his or her possession which is not less than the commercial quantity applicable to prohibited plants,
is guilty of an offence.

(3) If, on the trial of a person for an offence under subsection (2) (other than in relation to the cultivation of prohibited plants by enhanced indoor means), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person is liable to punishment accordingly.

(3A) If, on the trial of a person for an offence under subsection (2) in relation to the cultivation of prohibited plants by enhanced indoor means, the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of:
(a) an offence under subsection (1A), if the jury is satisfied that the person contravened subsection (1A), or
(b) an offence under subsection (1) (a), if the jury is not satisfied that the person contravened subsection (1A), but is satisfied that the person contravened subsection (1) (a),
and the person is liable to punishment accordingly.

(4) Nothing in this section renders unlawful any act relating to the cultivation, supply or possession of a prohibited plant by:
(a) a person:
(i) who informs the court before which the person is prosecuted that the person proposes to adduce evidence as referred to in subparagraph (ii), and
(ii) who adduces evidence which satisfies the court that, having regard to all the circumstances, including the person’s conduct, in which the act constituting the offence was done or preparatory to the doing of the act, the person did not know or suspect and could not reasonably be expected to have known or suspected that the prohibited plant was a prohibited plant, or
(b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the cultivation, supply or possession of the prohibited plant is for the purpose of scientific research, instruction, analysis or study, or
(c) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA.

(5) Where a person informs a court as referred to in subsection (4) (a) (i), evidence of any previous conviction of the person for any offence, being evidence which may intend to rebut the evidence referred to in subsection (4) (a) (ii), may, with the leave of the court, be adduced by the prosecutor.

(6) In this section and section 23A, “cultivating a prohibited plant for a commercial purpose” includes cultivating the plant:
(a) with the intention of selling it or any of its products, or
(b) with the belief that another person intends to sell it or any of its products.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

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  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

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  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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