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Cultivating or Knowingly Taking Part in the Cultivation of Prohibited Plants (Other than Cannabis)

Cultivating or knowingly taking part in the cultivation of prohibited plants (other than cannabis) is an offence under section 23(1)(a) and 23(2) 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, and
  2. The plant was a prohibited plant, other than cannabis.

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.

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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