CULTIVATION OF PROHIBITED PLANTS

It is an offence to cultivate or grow a prohibited plant under section 23 of the Drug Misuse and Trafficking Act 1985.

Elements of the offence

In order to prove this offence the prosecution must establish the following beyond a reasonable doubt:

  1. That the accused cultivated, or knowingly took part in the cultivation of, a prohibited plant; or
  2. supplied, or knowingly took part in the supply of, a prohibited plant; or
  3. has a prohibited plant in his or her possession.

Behaviour that may constitute this offence

Behaviour that may constitute this offence includes:

  • sowing or scattering the seeds of the prohibited plant;
  • planting the plant in a garden bed;
  • making sure the plant has sunlight;
  • repotting the plant;
  • rowing, tending to, watering, nurturing or harvesting the plant.

Penalties

The court that will deal with this offence depends on the number of plants the accused is charged with cultivating. Where the number of prohibited plants exceeds the indictable quantity, this will make the charge strictly indictable which means it can only be dealt with by the District Court.

Where the number of plants does not exceed the indictable quantity, this matter is considered a ‘Table 1’ offence which means that either the Director of Public Prosecutions or the accused can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.

Where the number of prohibited plants does not exceed the small quantity, this matter is a ‘Table 2’ offence which means that only the Director of Public Prosecutions can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.

The maximum penalty for this offence is 10 years imprisonment. If the matter is dealt with in the Local Court the maximum penalty is 2 years imprisonment.

Defences

Possible defences to this charge include arguing that you did not cultivate the plant or that the plant was not prohibited.

If you have been charged with cultivating a prohibited plant, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skype, Zoom and FaceTime anywhere around the world.