Cultivating prohibited plants other than cannabis by enhanced indoor means for a commercial purpose is an offence under section 23(1A)(b) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of:
- 15 years in prison for less than a commercial quantity
- 20 years in prison for at least a commercial quantity but less than a large commercial quantity, or
- Life in prison for a large commercial quantity.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You cultivated a plant, or you knowingly took part in the cultivation of a plant
- The plant was a prohibited plant other than cannabis
- The cultivation occurred by enhanced indoor means, and
- The cultivation was for a commercial purpose.
Prohibited plants other than cannabis include:
- Erythroxylon (a source of cocaine)
- Papaver Somniferum (opium poppy)
- Papaver Orientale (Oriental poppies), and
- 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:
- Took or participated in any step of the cultivation process or caused any such step to be taken
- Provided or arranged finance for any step in the cultivation process, or
- 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.
Cultivation is ‘by enhanced indoor means’ if it occurs:
- Inside a building or structure, and
- Involves one or more of the following:
(a) The nurture of the plant in nutrient-enriched water
(b) The application of an artificial light or heat source
(c) Suspending the plant’s roots and spraying them with nutrient solution.
Cultivation is for a ‘commercial purpose’ if it occurred:
- With the intention of selling it or any of its products, or
- With the belief that another person intended to sell it or any of its products.
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.