Defences to Cultivation of Cannabis Charges

The law relating to cultivating, supplying or possessing prohibited plants such as cannabis in New South Wales is set out in the Drug Misuse and Trafficking Act 1985 (the Act).

Cultivation means 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 Drug Misuse and Trafficking 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. It is enough that you knowingly took part in the process.

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

A legal defences to cannabis cultivation is duress.

Duress refers to situations where you have been threatened or intimidated into committing a crime against your will.

Duress will be raised where there is evidence that:

1. An actual threat was made

You may have to show evidence that a threat was made, for example, text messages or phone conversations, or give evidence in court about the threat and how it was made.

The threat can be either express or implied, and it does not matter whether the threat was actually able to be carried out – as long as you genuinely believed that the threat was real.

2. The threat was serious enough to justify your actions

The threat must be shown to be either a death threat or a threat of serious injury against yourself or your family.

The threat must also be so serious that it would have caused an ordinary person of your gender and maturity to act in the same way in those circumstances.

It must be shown that your own free will was overridden by the threat, so that you did not actually intend to perform the acts.

3. The threat must be acting on your mind at the time of the offence

If it is shown that the threat is no longer ‘acting on your mind,’ for example, where you are no longer worried about the threat, or where there is some other factor which influences your actions (such as revenge, or the possibility of a financial benefit), your defence may not be successful.

4. The threat was ‘continuing’

If there was an opportunity for you to avoid the threat, for example, by reporting the incident to police, your defence may not be accepted.

If you validly raise the defence of duress, the prosecution will then have to prove beyond a reasonable doubt that you were not acting under duress, that the threat was not serious enough to justify your actions, that the threat was not continuing, or that your actions were not those of a reasonable person in the circumstances.

The prosecution must prove the elements of the offence

Apart from this legal defence, it is important to bear in mind that the prosecution will fail if it is unable to establish, beyond reasonable doubt, that:

• The plant concerned was a prohibited plant,
• You cultivated the prohibited plant, or knowingly took part in its cultivation, and
• You knew the plant was a prohibited plant or could reasonably be suspected to have known this.