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Criminal Lawyers for Drug Cultivation – s 23 Drug Misuse and Trafficking Act 1985

Cultivating prohibited plants is the act of sowing or scattering seeds of, or planting, growing, tending, nurturing or harvesting prohibited plants such as cannabis (or marijuana), Erythroxylon (a source of cocaine) and opium poppies.

In order to be found guilty of the offence, the prosecution must prove beyond reasonable doubt that you cultivated, or knowingly took part in the cultivation of, a prohibited plant.

The applicable maximum penalty for cultivating prohibited plants depends on a several factors, including:

  • The number of plants (cannabis) or weight of plants (Erythroxylon and poppies),
  • Whether the cultivation took place by enhanced indoors means and, if so,
  • Whether the prosecution can prove the plants were cultivated for a commercial purpose,
  • Whether or not the cultivation took place in the presence of a child, and
  • Whether the case is finalised in the local court (where the penalties are lower) or in a higher court such as the district court.

The specific offences relating to drug cultivation are:

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

If you have been accused of a cultivation offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free consultation with a defence lawyer who is vastly experienced in defending and winning drug cultivation cases.

Read on for more information about drug cultivation offences.

Your Options in Court

Pleading Not Guilty

To be found guilty of a drug cultivation offence, the prosecution must prove each of the essential ‘elements’ (or ingredients) of the offence beyond a reasonable doubt.

Cultivating a Prohibited Plant

To establish the offence of cultivating a prohibited plant, also known as drug cultivation, 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.

Pleading Guilty

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.

The tables below summarise the penalties that apply to cultivating cannabis plants:

Here are the maximum penalties:

Cultivate Prohibited Plant

Number of Cannabis plants Maximum Penalty
Local Court District Court
Less than or equal to small quantity (‘small quantity’) 1 – 5 2 years imprisonment and/or $5,500 fine.

 

10 years imprisonment and/or $220,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 2 years imprisonment and/or $5,500 fine.

 

10 years imprisonment and/or $220,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 250 2 years imprisonment and/or $11,000 fine. 10 years imprisonment and/or $220,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 251 – 1000 Not applicable 15 years imprisonment and/or $385,000 fine
More than large commercial quantity 1001 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
Less than or equal to small quantity (‘small quantity’) 1 – 5 2 years imprisonment and/or $5,500 fine.

 

10 years imprisonment and/or $220,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 2 years imprisonment and/or $11,000 fine. 10 years imprisonment and/or $220,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 15 years imprisonment and/or $385,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 201 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
Less than or equal to small quantity (‘small quantity’) 1 – 5 Not applicable

 

10 years imprisonment and/or $220,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 Not applicable 10 years imprisonment and/or $220,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 15 years imprisonment and/or $385,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 201 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
Less than or equal to small quantity (‘small quantity’) 1 – 5 2 years imprisonment and/or $5,500 fine.

 

12 years imprisonment and/or $264,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 2 years imprisonment and/or $11,000 fine. 12 years imprisonment and/or $264,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 18 years imprisonment and/or $462,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 201 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
Less than or equal to small quantity (‘small quantity’) 1 – 5 Not applicable

 

18 years imprisonment and/or $462,000 fine
More than small quantity, but less than or equal to indictable quantity (‘indictable quantity’) 6 – 50 Not applicable 18 years imprisonment and/or $462,000 fine
More than indictable quantity, but less than or equal to commercial quantity (‘commercial quantity’) 51 – 200 Not applicable 18 years imprisonment and/or $462,000 fine
More than commercial quantity, but less than or equal to large commercial quantity (‘large commercial quantity’) 201 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:

Frequently Asked Questions

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.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    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.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  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.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  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:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

    We offer free parking at our Sydney CBD and Liverpool locations, 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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