Cultivate Prohibited Plants-Section 23 Drug Misuse and Trafficking Act 1985 (NSW)

Cultivating prohibited plants means to either sow or scatter the seed produced by the prohibited plant, growing, tending, nurturing or harvesting prohibited plants such as cannabis, Erythroxylon and opium poppies.

For you 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 maximum penalty will depend on several factors, including:

  • Whether the prosecution can prove the plants were cultivated for a commercial purpose
  • If cultivation took place by enhanced indoor means, and if so,
  • Whether the cultivation took place in the presence of a child
  • The number of plants or weights of plants
  • Which court the case will be finalised in.

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

 ‘Cultivating by Enhanced Indoor Means’ is as follows:

  • Applying artificial light or heat
  • Nurture the plant in nutrients-enriched water
  • Suspend the plant’s roots and s[ray with nutrient solution

‘Cultivating a Prohibited Plant for a Commercial Purpose’ is as follows:

  • To cultivate a plant with the intention of either selling it or where you believe that someone else intends to sell it

For you to be found guilty of drug cultivation, the prosecution must prove each essential element beyond reasonable doubt as follows:

Cultivating a Prohibited Plant

  1. You cultivated, or knowingly took part in the cultivation of, a plant, and
  2. The plant was a prohibited plant.

You will be found not guilty if the prosecution is unable to prove these elements.

‘Cultivating’ means to sow or scatter the seeds produced by prohibited plants, or to plant, grow, tend to, nurture or harvest the plants.

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).

If you raise a 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 prohibited plants means to either woe or scatter the seed produced by the prohibited plant, growing, tending, nurturing or harvesting prohibited plants such as cannabis, Erythroxylon and opium poppies.

For you 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 maximum penalty will depend on several factors, including:

  • Whether the prosecution can prove the plants were cultivated for a commercial purpose
  • If cultivation took place by enhanced indoor means, and if so,
  • Whether the cultivation took place in the presence of a child
  • The number of plants or weights of plants
  • Which court the case will be finalised in.

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

 ‘Cultivating by Enhanced Indoor Means’ is as follows:

  • Applying artificial light or heat
  • Nurture the plant in nutrients-enriched water
  • Suspend the plant’s roots and s[ray with nutrient solution

‘Cultivating a Prohibited Plant for a Commercial Purpose’ is as follows:

  • To cultivate a plant with the intention of either selling it or where you believe that someone else intends to sell it

For you to be found guilty of drug cultivation, the prosecution must prove each essential element beyond reasonable doubt as follows:

  • You cultivated, or knowingly took part in the cultivation of, a plant, and
  • The plant was a prohibited plant.

You will be found not guilty if the prosecution is unable to prove these elements.

‘Cultivating’ means to sow or scatter the seeds produced by prohibited plants, or to plant, grow, tend to, nurture or harvest the plants.

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).

If you raise a 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.

For you to be found guilty of drug cultivation, the prosecution must prove each essential element beyond reasonable doubt as follows:

  • You cultivated, or knowingly took part in the cultivation of, a plant,
  • The plant was a prohibited plant, and
  • The cultivation took place by way of enhanced indoor means.

‘Enhanced indoor means’ is where the cultivation:

  • Occurred within a building or structure, and
  • Involved any one or more of the following:
  • the nurture of the plant in nutrient-enriched water (with or without mechanical support),
  • the application of an artificial source of light or heat, or
  • suspending the plant’s roots and spraying them with nutrient solution.

For you to be found guilty of drug cultivation, the prosecution must prove each essential element beyond reasonable doubt as follows:

  • You cultivated, or knowingly took part in the cultivation of, a plant,
  • The plant was a prohibited plant,
  • The cultivation took place by way of enhanced indoor means, and
  • The cultivation was for a commercial purpose.

‘Commercial purpose’ means:

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

For you to be found guilty of drug cultivation, the prosecution must prove each essential element beyond reasonable doubt as follows:

  • You cultivated, or knowingly took part in the cultivation of, a plant,
  • The plant was a prohibited plant,
  • The cultivation took place by way of enhanced indoor means, and
  • The cultivation occurred in the presence of a child or children.

For you to be found guilty of drug cultivation, the prosecution must prove each essential element beyond reasonable doubt as follows:

  • You cultivated, or knowingly took part in the cultivation of, a plant,
  • The plant was a prohibited plant,
  • The cultivation took place by way of enhanced indoor means,
  • The cultivation was for a commercial purpose, and
  • The cultivation occurred in the presence of a child or children.

Your Options in Court

Pleading Not Guilty

Pleading Guilty

It is important that you speak to an experienced criminal defence lawyer who will be able to advise you of your options.

If you decide or have been advised to plead guilty to drug cultivation after receiving legal advice from an experienced criminal defence lawyer, it is crucial that your case is sufficiently prepared to maximise your chances at obtaining a lenient sentence. 

Utilitarian Value or 25% discount on punishment

The discount for the utilitarian value of the plea of guilty will be determined largely by the timing of your plea entered. That means, the earlier you enter a plea of guilty, the greater discount you receive on your punishment and also the type of sentence you receive.

The utilitarian value of a delayed plea is less and consequently the discount is reduced.

Types of Penalties

Our expert defence team at Criminal Lawyers Sydney may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.

Our team will guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references, and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

Maximum Penalties

Cultivating a Prohibited Plant

 Number of PlantsMaximum Penalty Local CourtMaximum Penalty District Court
Small qty1-52 years imprisonment and/or $5,500 fine.  10 years imprisonment and/or $220,000 fine
Indictable qty6-502 years imprisonment and/or $5,500 fine.  10 years imprisonment and/or $220,000 fine
Commercial qty51 – 2502 years imprisonment and/or $11,000 fine.10 years imprisonment and/or $220,000 fine
Large commercial qty251 – 1000Not applicable15 years imprisonment and/or $385,000 fine
More than large commercial qty1001 or moreNot applicable20 years imprisonment and/or $550,000

Cultivating a prohibited plant by enhanced indoor means

 Number of PlantsMaximum Penalty Local CourtMaximum Penalty District Court
Small qty1 – 52 years imprisonment and/or $5,500 fine.  10 years imprisonment and/or $220,000 fine
Indictable qty6 – 502 years imprisonment and/or $11,000 fine.10 years imprisonment and/or $220,000 fine
Commercial qty51 – 200Not applicable15 years imprisonment and/or $385,000 fine
Large commercial qty201 or moreNot applicable20 years imprisonment and/or $550,000

Cultivating a prohibited plant by enhanced indoor means for a commercial purpose

 Number of PlantsMaximum Penalty Local CourtMaximum Penalty District Court
Small qty1 – 5Not applicable  10 years imprisonment and/or $220,000 fine
Indictable qty6 – 50Not applicable10 years imprisonment and/or $220,000 fine
Commercial qty51 – 200Not applicable15 years imprisonment and/or $385,000 fine
Large commercial qty201 or moreNot applicable20 years imprisonment and/or $550,000

Cultivating a prohibited plant by enhanced indoor means in the presence of children

 Number of PlantsMaximum Penalty Local CourtMaximum Penalty District Court
Small qty1 – 52 years imprisonment and/or $5,500 fine.  12 years imprisonment and/or $264,000 fine
Indictable qty6 – 502 years imprisonment and/or $11,000 fine.12 years imprisonment and/or $264,000 fine
Commercial qty51 – 200Not applicable18 years imprisonment and/or $462,000 fine
Large commercial qty201 or moreNot applicable24 years imprisonment and/or $660,000

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

 Number of PlantsMaximum Penalty Local CourtMaximum Penalty District Court
Small qty1 – 5Not applicable  18 years imprisonment and/or $462,000 fine
Indictable qty6 – 50Not applicable18 years imprisonment and/or $462,000 fine
Commercial qty51 – 200Not applicable18 years imprisonment and/or $462,000 fine
Large commercial qty201 or moreNot applicable24 years imprisonment and/or $660,000

If you have been charged with drug cultivation, call Criminal Lawyers Sydney anytime on (02) 91528619 to arrange a free first conference with one of our experienced Sydney drug lawyers who will review the allegations and advise you of your options and the best way forward.