Cultivation of Narcotics (Non-Commercial Amount)

In Victoria, it is a criminal offence to cultivate or attempt to cultivate Narcotic plants.[1] ‘Cultivation’ means to grow or produce, to arrange finance or transport of Narcotic or products used to for the purpose of growing a Narcotic plant, sowing the seeds of, planting or harvesting a Narcotic plant.[2] A Narcotic plant is a Cannabis plant or similar narcotic plant such as Opium Poppy or Cocoa.[3] For example, if you grow a few Marijuana plants in your backyard, even if they are for personal use, you could be charged with a Cultivation of Narcotics offence.

A non-commercial quantity is classified as being an amount less than 25 kilograms (or approx 100 plants).

Elements of the Cultivation of Narcotics Offence

In order to prove a charge of Cultivation of Narcotics (non-commercial amount), the Police must prove beyond reasonable doubt that you:

1. Intentionally cultivated, or attempted to cultivate;
2. A plant considered to be a narcotic;

It is important to note that attempting to cultivate a Narcotic plant may also constitute the offence. However, the Police do not need to prove an intention to cultivate a Narcotic plant, unlike with other drug offences, such as drug trafficking.[4]

Possible Penalties

If the judge finds you guilty of the charge and is satisfied (on the balance of probabilities) that the Cultivation of Narcotics was not for the purposes of trafficking, the maximum penalty is 1-year imprisonment.[5]

In other cases, a maximum term of imprisonment of 15 years may be imposed.[6] Importantly, higher penalties exist if the amount of narcotic plant exceeds 25 kilograms (or 100 plants) and is therefore considered to be a commercial quantity.

The penalty for Cultivation of a Commercial Quantity of Narcotic Plant is a maximum 25 years imprisonment.[7]

Defences to the Cultivation of Narcotics Charge

You will have a defence to your Cultivation of a Narcotic plant charge if you were unaware that the plant you took steps to cultivate was classified as a ‘Narcotic’.[8] However, the Court must also be satisfied (on the balance of probabilities) that you either did not know or could not have reasonably expected that the plant was a Narcotic.[9] For example, if you reasonably believed the plants you were cultivating were not Narcotics (e.g. a tomato plant).

Additionally, if you are authorised to grow Cannabis or other Narcotic plants under the Access to Medical Cannabis Act 2018, you will have an exemption to the charge. A licence to grow Narcotics under this exemption must have been granted prior to cultivation.

It may also be a defence to the charge of Cultivation of Cannabis if you are not in control of the plants that are being cultivated on a property that you are living at or if you are simply couch surfing on such property. The knowledge that the plants are being cultivated on the property is not sufficient in those circumstances for the prosecution to prove the charge beyond reasonable doubt.

You will also have the defences of mistaken identity, duress, sudden extraordinary emergency and factual dispute available to you. However, you should consult an experienced legal practitioner to assist identify the best defence based on the circumstances of your case.

[1] Poisons and Controlled Substances Act 1981 (Vic) s 72B.
[2] Poisons and Controlled Substances Act 1981 (Vic) s 70(1); Eager v Smith (1988) 38 A Crim R 272 (NSW SC).
[3] Poisons and Controlled Substances Act 1981 (Vic) s 70(1).
[4] R v Pantorno [1988] VR 195.
[5] Poisons and Controlled Substances Act 1981 (Vic) s 72B(a).
[6] Poisons and Controlled Substances Act 1981 (Vic) s 72B(b).
[7] Poisons and Controlled Substances Act 1981 (Vic) s 72A.
[8] Poisons and Controlled Substances Act 1981 (Vic) s 72C.
[9] Ibid.