Defences to Cultivation of Cannabis Charges

by Ugur Nedim

The law regarding the cultivation of prohibited plants, such as cannabis, is set out under the Misuse of Drugs and Trafficking Act 1985 (the Act). Cultivation is in essence the illegal growing, tending, planting or harvesting of prohibited plants. If you have been charged with this offence, the penalties can be serious. However, you may wish to defend the charge and plead not guilty. There are some available defences on cultivation of cannabis which if proved to a certain standard may see the charges against you dismissed.

The offence

Under section 23 of the Act it is illegal to cultivate cannabis outdoors or cultivate it by indoor means. Cultivating outdoors is sowing or scattering the seeds, planting, growing, tending, nurturing and harvesting the plant. Cultivating by indoor means it occurs inside a building or structure. This may involve the nurture of the plant in nutrient-enriched water (with or without mechanical support), or the application of an artificial source of light or heat, or suspending the plant’s roots and spraying them with nutrient solution.

You don’t need to be the sole cultivator to be guilty of the offence. If you take part in any part of the process of cultivation you can also be guilty of the offence.

The penalties for Cannabis cultivation

The penalties depend on the amount of prohibited plant that is cultivated. The greater the amount of prohibited plant that is cultivated, the more serious the penalty could be. For small amounts – 5 or less plants – it’s likely the matter will be dealt with in Local Court. While penalties can reach 2 years imprisonment, other sentencing options are available including good behaviour bonds, community service, section 10 dismissals, conditional release orders, and suspended sentences.

At 50 plants, it becomes an indictable quantity – meaning the matter can be heard in front of a jury in District Court. The possible penalties become more severe as the amount of plants increases, and for a ‘large commercial quantity’ the custodial penalty can be up to 20 years.

The defences

There are defences on cultivation of cannabis, including duress, and honest and reasonable mistake of fact.

If a defence is being raised there are some rules that must be followed. First, while the prosecution is expected to prove its case against a defendant – that the person charged was knowingly involved in the cannabis cultivation – evidence for any particular defence raised should be provided by the defence team. This may sound obvious but what it means is that the defence needs to get its own evidence and witnesses and have them presented and testify in court. Secondly, whilst a prosecutor needs to prove the charges to a standard of beyond reasonable doubt, the defence needs to only be proved to the standard of on the balance of probabilities. This means that if the jury or judge or magistrate feels that the evidence shows that the defence more likely than not occurred then the defence has been sufficiently proven.


This defence is rarely used. It can be invoked if a defendant was threatened or their family member was threatened with death or serious injury unless they took part in the illegal act. In short it means that as a matter of protecting your own life or the life of a family member you were forced to take part in the crime.

To prove duress, the defence must call evidence to show there was a threat made, that the threat was about death or serious injury to the defendant or a family member, that an ordinary person would have acted the way the defendant did in those circumstances by yielding to the threat, that the defendant acted as he or she did because of that threat and that this threat was looming or ongoing and unable to be neutralised.

Honest and reasonable mistake of fact

This defence essentially means that the defendant was unaware that the plants he or she was cultivating were prohibited plants. This can be rather tricky to prove as it may be hard to show these days that a person does not know what a cannabis plant looks and smells like and/or was not aware that cultivating them was not legal. If the defendant has a previous conviction relating to cannabis, this may be brought up by the prosecution to rebut this defence.

If you’ve been charged with cultivating cannabis, we recommend speaking to an experienced drug lawyer as soon as you can. Your lawyer can discuss any possible defences for cultivation of cannabis with you, and the options available for dealing with the situation.


Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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