Cultivation of Narcotic Plants (Non-Commercial Quantity)
Sentencing in the higher courts of VictoriaPlease note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.1
Sentencing in the Magistrates’ Courts of VictoriaPlease note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2
 Sentencing Advisory Council. Abolished Sentencing Orders, accessed January 19, 2021, https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders.
The decision on which jurisdiction will hear a case often reflects the seriousness with which the indictment or summons is viewed and/or and the quantity or scale of the operation. The circumstances surrounding cultivation charges will determine where a case will be heard. For instance, a small scale, unsophisticated cannabis plant set up in a person’s garage containing a single plant may be heard in the Magistrates’ Court as opposed to a larger scale hydroponic cannabis set up for the purpose of trafficking. The second example is likely to be heard in the County Court (please note that these are examples and every case will be assessed on its own facts).3
Please note that a traffickable quantity of cannabis is considered to be 250 grams or over, or 10 plants.
The legislationThis offence of cultivate narcotic plants (such as cannabis) is governed by section 72B of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”) which reads as follows:
- if the trial judge (or magistrate on a summary hearing) is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose related to trafficking in that plant, to level 8 imprisonment (1 year maximum) or a penalty of not more than 20 penalty units or both; or
- in any other case, to level 4 imprisonment (15 years maximum).
This list is not exhaustive and other acts can be seen to satisfy the definition of cultivate. Generally, any act which may be viewed as assisting in the growth of a narcotic plant or cannabis may give rise to cultivation charges.
To prove this charge the police must show that the accused intentionally cultivated cannabis or narcotic plants or attempted to cultivate cannabis or other narcotic plants. A list of narcotic plants are specified in Column 1 of Part 2 of Schedule 11 in the Act. Included in this list is cannabis, as well as two types of coca plant and two types of opium poppy. A narcotic plant includes a cutting of a plant, whether or not the cutting has roots.
We have often found that the Police will charge a number of people in relation to the same cannabis cultivation charges because various items identifying them have been found at the address where the cannabis cultivation is occurring. A criminal defence lawyer can best assess the strength of a police brief against you.
The elementsThe prosecution must prove the following:
- The accused intentionally cultivated a plant
- The plant cultivated by the accused was cannabis or another narcotic plant
Taking part in any step of the growing process will be considered ‘cultivating’ for the purpose of this section. A person can take part in the process for example, by watering the plants even if the plant is not theirs, supplying electricity, checking up on growth progress or transporting equipment or materials. Providing or arranging finance for the operation may also be deemed cultivating. Whatever the act that constitutes the cultivation, the relevant act must have been performed intentionally for a cultivation charge to be valid. The accused must have known that the narcotic plant, was a narcotic plant.
Intention may be evident by an admission of the accused however, in most cases it will be necessary to infer the requisite intention from the act and the circumstances in which it was performed.5
In some cases, it may also be possible to infer an intention to cultivate a specified quantity from the fact that:
- The circumstances were such that the accused’s suspicions that the specified quantity of plants was being cultivated would have been aroused; and
- The accused deliberately failed to make inquiries about the quantity being cultivated, for fear of learning the truth.6
The accused may have a defence under s.72C of the Act. This is discussed further below.
Element 2: The plant cultivated by the accused was a narcotic plant
The plant cultivated by the accused must have been a “narcotic plant”. Section 70(1) defines “narcotic plant” to mean “any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven” of the Drugs Act. This includes cannabis, as well as two types of coca plant and two types of opium poppy.
Section 70(1) of the Act.
He Kaw Teh v R (1985) 157 CLR 523; R v Bui  VSCA 300; R v Garlick  VSCA 127; R v Page  VSCA 54.
R v Garlick (No.2) (2007) 170 A Crim R 265. See also He Kaw Teh v R (1985) 157 CLR 523; Bahri Kural v R (1987) 162 CLR 502; R v Crabbe (1985) 156 CLR 464 cited in Criminal Charge Book, 22.214.171.124 – Bench notes: Cultivation of Narcotic Plants (21 January 2011) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19338.htm>.
Natale v R (1988) 38 A Crime R 122.
Lack of knowledge is a defence under section 72C of the Act. Both elements of the charge can be proven, but without knowledge, a cultivation charge cannot be made out. The accused must prove that he/she did not know or suspect the plant he/she was cultivating was cannabis or a narcotic plant. Secondly, the accused must also prove that he/she could not reasonably have been expected to have known or suspect that the plant he/she was cultivating was cannabis or a narcotic plant.8
In order for this defence to apply, the accused must prove on the balance of probabilities, that they were appropriately authorised or licensed. The provisions relevant to the authorisation and licensing are found in Division 2 and 4 of the Act.
Defences to a charge of cultivate narcotic plant can also include but are not limited to sudden or extraordinary emergency, involuntary act, mental impairment, wrongful identification, factual dispute, necessity or duress may apply.
In a trial involving cultivation charges, the questions a judge will ask the jury to consider (in the event the accused is raising a section 72C defence of lack of knowledge of narcotic plant) are:
- Did the accused intentionally cultivate a plant?
(Consider – “Cultivation” includes planting, growing, tending, nurturing, harvesting and sowing the seeds of a plant)
If yes, proceed to question 2.
If no, then the accused is not guilty of cultivate narcotic plant.
- Was the plant cultivated a “narcotic plant”?
(Consider – [Insert name of plant] is a “narcotic plant”?)
If yes, proceed to 3.
If no, then the accused is not guilty of cultivate narcotic plant.
- Has the defence proven, on the balance of probabilities, that the accused did not know or suspect that the plant they were cultivating was a narcotic plant?
If yes, proceed to question 4.
If no, then the accused is guilty of cultivate narcotic plant (as long as you answered yes to questions 1 and 2).
- Has the defence proven, on the balance of probabilities, that the accused could not reasonably have been expected to have known or suspected that the plant they were cultivating was a narcotic plant?
(Consider – It is not enough to show that the accused realised that damage or destruction might occur, or was possible).
If yes, then the accused is not guilty of cultivate narcotic plant.
If no, then the accused is guilty of cultivate narcotic plant.
Criminal Charge Book, 126.96.36.199.1 – Cultivation of Narcotic Plants (3 December 2012) Judicial College of Victoria.