Cultivation of Prohibited Plant (Including Cannabis)

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.

To ‘knowingly take part in cultivation’ is to:

1. Take part or participated in any step of the cultivation process, or cause any such step to be taken,
2. Provide or arrange finance for any step in the cultivation process, or
3. Provide the premises for any step in the cultivation process, or suffer or permit any such step to be taken in a premises for which a person is the owner, lessee, occupier or manager.

The most frequently prosecuted cultivation charges relate to cannabis plants.

However, the offence also applies 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 having a licence, permit or authorisation to cultivate, or the defence of duress, which if properly raised the prosecution must disprove beyond a reasonable doubt.

If the prosecution is unable to do this, you must be acquitted.

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.

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

Cultivate Prohibited Plant by Enhanced Indoor Means

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose

Cultivate Prohibited Plant by Enhanced Indoor Means in the Presence of Child

Cultivate Prohibited Plant by Enhanced Indoor Means for Commercial Purpose in the Presence of Child

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:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• A shorter prison term

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