Prohibited Plant Cultivation
It is an offence under section 23 of the Drug Misuse and Trafficking Act 1985 (NSW) to cultivate, or knowingly take part in the cultivation of a prohibited plant.
Cultivation Includes:
Sowing or scattering the seed produced by the prohibited plant
Planting, growing, tending, nurturing, or harvesting the prohibited plant.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You cultivated, or knowingly take part in the cultivation of a plant
The plant was prohibited
What are Prohibited Plants?
A cannabis plant cultivated by enhanced indoor means
A cannabis plant cultivated by any other means
Any growing plant of the genus Erythroxylon (a source of cocaine)
Or of the species Papaver Somniferum (opium poppy)
Or Papaver orientale (Oriental poppies)
Or Papaver bracteatum (Iranian or Persian poppies)
Maximum Penalties
The maximum penalty in the District Court is 2,000 penalty units ($220,000) and/or 15 years imprisonment. The maximum penalty is a fine of 2,000 penalty units ($220,000) and/or imprisonment for 10 years for offences relating to a cannabis plant.
Cultivating a prohibited plant by enhanced indoor means and/ or for a commercial purpose
The maximum penalty is a fine of 3,500 penalty units ($385,000) and/or imprisonment for 20 years.
The maximum penalty is a fine of 3,500 penalty units ($385,000) and/or imprisonment for 15 years for offences relating to a cannabis plant.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to these charges can include:
You did not know or suspect and could not have reasonably been expected to have known or suspected that the plant was prohibited.
You are a person acting under a poppy licence under the Poppy Industry Act 2016 (NSW).
You are acting under an authority granted by the Secretary of the Department of Health and the cultivation of the prohibited plant is for scientific research, instruction, analysis, or study.
You are acting under a direction given by the Commissioner of Police under section 39Q.
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)