Key Takeaways

Cultivate sentences and drug cultivation penalties in NSW under cannabis laws in NSW range from 2 to 24 years imprisonment depending on the quantity, number of plants, whether it’s enhanced indoor means, for a commercial purpose, and whether you’ve been legally growing weed in Australia. Here, we outline common cultivate prohibited plant defences, what police must prove, definition of ‘cultivate’, and more.

Definition of ‘Knowingly Take Part In’ What is the ‘Standard Non-Parole Period’, and does it apply to cultivating prohibited plant Offences?

Cannabis Laws NSW | Cultivate Prohibited Plants Charges

Cultivating plants or doing so by enhanced indoor means is a crime in NSW. It’s equally a crime to possessing or supplying a prohibited plant, or to cultivate a prohibited plant for a ‘commercial purpose’ or by ‘enhanced indoor means in the presence of a child’. These penalties range from 2 years to 24 years imprisonment.

Click here for more on legally growing weed in Australia.

Definition of ‘Cultivate’?

Cultivate means to either sow or scatter the seed produced by the prohibited plant. It also includes, to plant, grow, tend, nurture or harvest a prohibited plant. i.e. watering the plants is also considered ‘cultivating’.

Definition of ‘Cultivate by Enhanced Indoor Means’?

This means to cultivate a prohibited plant inside a structure or building where you:

  • Apply artificial light or heat to, or
  • Nurture the plant in nutrients-enriched water, or
  • Suspend the plant’s roots and spray it with nutrient solution.

Definition of a ‘Prohibited Plant’?

A ‘prohibited plant’ includes a cannabis plant cultivated outside or by enhanced indoor means and includes, any growing plant of the genus Erythroxylon or of the species Papaver Somniferum, Papaver orientale or Papaver bracteatum.

Cultivating Prohibited Plants for ‘Commercial Purpose’

Drug cultivation including cultivating prohibited plants for a ‘commercial purpose’ means to cultivate a plant with the intention of either selling it or in circumstances you believe someone else intends to sell it.

Cultivate Sentences & Drug Cultivation Penalties in NSW

Penalties for Cultivation, Supply or Possess Prohibited Plants
Small Quantity 2 years imprisonment and/or $5,500 fine 10 years imprisonment and/or $220,000 fine
Indictable Quantity 2 years imprisonment and/or $11,000 fine 10 years imprisonment and/or $220,000 fine
Commercial Quantity Cannot be dealt with in Local Court 15 years imprisonment and/or $385,000 fine
Large Commercial Quantity Cannot be dealt with in Local Court 20 years imprisonment and/or $550,000 fine
Small Quantity 2 years imprisonment and/or $5,500 fine 10 years imprisonment and/or $220,000 fine
Indictable Quantity 2 years imprisonment and/or $11,000 fine 10 years imprisonment and/or $220,000 fine
Commercial Quantity Cannot be dealt with in Local Court 15 years imprisonment and/or $385,000 fine
Large Commercial Quantity Cannot be dealt with in Local Court 20 years imprisonment and/or $550,000 fine
Small Quantity Cannot be dealt with in Local Court 15 years imprisonment and/or $385,000 fine
Indictable Quantity Cannot be dealt with in Local Court 15 years imprisonment and/or $385,000 fine
Commercial Quantity Cannot be dealt with in Local Court 15 years imprisonment and/or $385,000 fine
Large Commercial Quantity Cannot be dealt with in Local Court 20 years imprisonment and/or $550,000 fine
Penalties for Cultivating Prohibited Plants by Enhanced Indoor Means in Presence of Child
Small Quantity 2 years imprisonment and/or $5,500 fine 12 years imprisonment and/or $264,000 fine 18 years imprisonment and/or $462,000 fine
Indictable Quantity 2 years imprisonment and/or $11,000 fine 12 years imprisonment and/or $264,000 fine 18 years imprisonment and/or $462,000 fine
Commercial Quantity Cannot be dealt with in Local Court 18 years imprisonment and/or $462,000 fine 18-years imprisonment and/or $462,00 fine
Large Commercial Quantity Cannot be dealt with in Local Court 24 years imprisonment and/or $660,000 fine 24 years imprisonment and/or $660,000 fine

Sentencing penalties for cultivating prohibited plants vary depending on the quantity of the plant, and whether it’s indoors or outdoors.

Cultivate Prohibited Plants Defences

You will be found not guilty of cultivating prohibited plants if:

  • You did this under duress or necessity.
  • You had possession of cannabis plant in accordance a prescription obtained from a doctor, nurse practitioner, midwife, dentist or vet.
  • You did not know or suspect that it was a prohibited plant, and you couldn’t reasonably be expected to have known or suspected that it was a prohibited plant.
  • You didn’t cultivate or knowingly take part in cultivating.
  • The plant is not actually a prohibited plant.
  • If you’re charged with cultivating by enhanced indoor means, and there is no evidence that you cultivated inside a building, nurtured or promoted the plants’ growths.
  • If you’re charged with cultivating for a commercial purpose by enhanced indoor means, and there is no evidence that you intended to sell it; and there is no evidence that you were aware that anyone else intended to sell it.
  • If this charge involves allegations that a child was exposed as a result of cultivating, you cannot be guilty if the exposure caused no health or safety danger to the child.
  • You will be not guilty if the prosecution fails to prove any of the essential elements of the crime, listed below.

For more details, contact drug cultivation lawyers for tailored advice.

What Police Must Prove in Cultivate Offences

To prove the offence of cultivating a prohibited plant under s23(1), police must prove each of the following elements beyond reasonable doubt:

  • That you cultivated, supplied or possessed a prohibited plant (or knowingly taking part in it); and
  • The weight/quantity falls within the quantity you are charged for i.e., small, indictable, commercial or large commercial quantity.

To prove the offence of cultivate by enhanced indoor means under s23(1A), police must prove each of the following elements beyond reasonable doubt:

  • That you cultivated a prohibited plant (or knowingly took part in it); and
  • You did this by enhanced indoor means; and
  • You did this for a commercial purpose; and
  • The weight/quantity falls within the quantity you are charged for i.e., small, indictable, commercial or large commercial quantity.

To prove the offence of cultivate by enhanced indoor means where a child’s been exposed under s23A, police must prove each of the following elements beyond reasonable doubt:

  • That you cultivated a prohibited plant (or knowingly took part in it), and
  • You did this by enhanced indoor means, and
  • As a result, the cultivation process or the substances stored for use in the cultivation process has exposed a child, and
  • The weight/quantity falls within the quantity you are charged for i.e., small, indictable, commercial or large commercial quantity, or
  • Where the weight/quantity falls within either the small quantity or indictable quantity, you cultivated for a commercial purpose.

Definition of ‘Knowingly Take Part in’?

‘Taking part in’ means, to take step(s) in the process of cultivating or supplying, or to provide or arrange finance for any of the steps in that process. It also includes, providing the premises for these things to take place in, where you are the owner or lessee or occupier of those premises.

What is the ‘Standard Non-Parole Period’, and does it apply to cultivating prohibited plant Offences?

The ‘standard non-parole period’ only applies where the offence is cultivating, supplying or possess a large commercial quantity of prohibited plants under section 23(2).

The standard non-parole period for cultivating, supplying or possessing a large commercial quantity of prohibited plants is 10-years.

The court is required to impose a ‘non-parole period’ and ‘parole period’ if a Judge or Magistrate imposes a full-time imprisonment sentence of more than 6-months.

The non-parole period represents the mandatory period the sentenced offender is required to remain in jail before he/she can be eligible for release back into the community on parole.

The parole period is the period he/she is eligible to be released on parole conditions for the remaining term of the sentence after the non-parole period expires.

Certain offences have a ‘standard non-parole period’. The standard non-parole period represents a guide for the courts to consider imposing in a sentence of imprisonment when determining an appropriate non-parole period for the offence.

The standard non-parole period is engaged only if the offending conduct is assessed by the court to fall in the middle of the range of objective seriousness for offences of cultivating prohibited plants.

This means, that the standard non-parole period is the prescribed standard minimum period of full-time jail before being eligible for release on parole.

Sentence Guidelines for Cultivating Prohibited Plants

Sentencing Guidelines for Cultivating Prohibited Plants
Any vulnerability The courts generally incline towards imposing a more lenient sentence where the offender suffers a vulnerability, such as drug addiction, which contributes to committing this offence.
Extent of your involvement and sophistication The less involved and sophisticated you were in the cultivation, the more lenient the sentence is likely to be in court. You are likely to get a heavier sentence if your level of involvement and sophistication is higher.
Period of offending The shorter the period of cultivating, the lighter your sentence will likely be. This also means that the sentence is likely to be heavier if you commit this offence over a long period of time.
Quantity of prohibited plants As outlined earlier, the maximum penalties depend on the quantity of the prohibited plants. The smaller the quantity, the more lenient the sentence is likely to be.

A Magistrate or Judge will consider the above factors when trying to determine the most appropriate sentence to impose for an offence of cultivating illegal or prohibited plants.

Marijuana Growing License and Laws in Australia

Marijuana, also known as cannabis, is an illegal drug across Australia except the Australian Capital Territory to a limited extent. Cannabis can only be legally cultivated across Australia through the licence and permit scheme pursuant to the Narcotic Drugs Act 1967 (Cth), which has been amended by the Narcotic Drugs Amendment Act 2016 (Cth). Without having a valid licence or permit, it is a criminal offence to cultivate marijuana.

Cultivating Medical Cannabis

Cultivating cannabis for medicinal purposes is permitted in Australia if you have a medicinal cannabis or cannabis research licence (ODC licence), which provides you the lawful permission to cultivate cannabis. Cultivation must then be done in accordance with the limits stipulated in the permit. A licence will then allow you to apply for a permit which outlines the extent and type of cannabis permitted to be cultivated or produced.

Why is Weed Illegal in Australia?

Cannabis was prohibited in Australia from about 1926 when the Commonwealth first prohibited it being imported. From then, ACT followed to prohibit it, then Victoria did the same in 1927. There is no specific formally documented reason as to why it was banned. The remainder of the States also banned it from 1926 to 1959. The ban is said to have initiated as a result of the 1925 Geneva Convention which was arranged by the League of Nations, founded in 1920. It was originally created to for world peace. In 1925, cocaine and heroin were the original drugs on the agenda to be banned. Cannabis was subsequently added to the list of prohibited drugs, which resulted in the 1961 Single Convention on Narcotic Drugs Treaty, which Australia is a signatory of. Since then, many countries who are signatories to the same treaty have breached it. Australia is yet to follow.

How Many Plants for Personal Use Western Australia

In Western Australia, you can cultivate or grow marijuana with a Medicinal Cannabis license for medicinal purposes. Possession of under five plants are considered for personal use. A medicinal cannabis license is powered by the Narcotics Drug Act 1967 (Cth). Once a license is obtained, cannabis can be grown, cultivated or harvested for medical purposes.

How Many Plants for Personal Use in Victoria

Marijuana or cannabis can be grown in Victoria if you have a medicinal cannabis license covered within the Narcotic Drug Act 1967 (Cth). Under the license, you can then harvest, or grow cannabis for personal or medical use. Without this license, it is illegal to grow cannabis even for personal use in the State of Victoria, Australia.

When did Marijuana Become Illegal in Australia?

Marijuana first became illegal in Australia in 1926. The Act was then the first to ban it, followed by the remainder of the States and Territories of Australia. All States and Territories had prohibited Marijuana by 1959 following the 1925 Geneva Convention headed by the then League of Nations (now called the United Nations).

What is a Prohibited Plant?

A prohibited plant includes cannabis, also called marijuana. It also includes a growing plant of the genus Erythroxylon or of the species Papaver Somniferum, Paraver bracteatum or Papaver orienta.

How Many Plants Can You Grow in NSW?

You can grow marijuana in New South Wales if you have a medicinal cannabis license under the Narcotics Drug Act 1967 (NSW) for medical purposes. Without this licence or permit, it is illegal to grow any number of cannabis plants in NSW.

What is the Charge for Cultivation?

A cultivation charge is a criminal offence carrying serious criminal penalties, including a conviction and jail time if you cultivate, supply, or possess a prohibited plant or if you knowingly take part in this. The statutory legislation in NSW that prescribes this is called the Drug Misuse and Trafficking Act 1985.

Cultivation of drugs essential includes to sow, or scatter the seed produced from a prohibited plant. In addition, cultivation also includes growing, tendering, nurturing, harvesting or planting a prohibited plant. This includes watering it.