The offence of cultivating cannabis for sale can be committed in any of the following ways:

• Cultivate a cannabis plant with the intention of selling any of it or its products; or
• Cultivating a cannabis plant believing that another person intends to sell any of it or its products.

This offence is very serious and the maximum penalty can include life imprisonment.

The maximum penalty for a cultivation for sale offence will vary depending on the number of plants you have. For sentencing purposes cultivating cannabis plants for sale are classified as follows:

No. of plants
Large Commercial Quantity: 100
Commercial Quantity: 20
Trafficable Quantity: 10

Large commercial quantity: $500,000 fine or life imprisonment, or both
Commercial quantity: $200,000 fine or 25 years imprisonment, or both
Trafficable quantity: $50,000 fine or 10 years imprisonment, or both

There are a number of ways to defend drug cultivation for sale charges – to either have the charges dismissed altogether or to downgrade the severity of the punishment.

It Is Not Cannabis
Section 4 of the Controlled Substances Act 1984 defines cannabis as: a plant, or any part (including the seed) of a plant, of the genus cannabis, but does not include cannabis resin or oil. Thus, you will have a complete defence to this charge if it can be shown that the plant or plant matter in your possession was something other than cannabis.

You Didn’t Know It Was Cannabis
In the event that you unwittingly grew cannabis, intending to grow some other variety of plant, and there is some evidence to support this claim, you may have a defence to this charge.

The Plants Were Dead
Section 4 of the Controlled Substances Act 1984 defines a controlled plant as: a growing cannabis plant or a cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium). Thus, if the plants are dead they do not fall under the scope of the legislation and you will have a defence to this charge.

The Plants Did Not Have A Root System
Section 4 of the Controlled Substances Act 1984 defines a controlled plant as: a growing cannabis plant or a cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium). Thus, without a root system, the plants do not fall under the scope of the legislation and you will have a defence to this charge.

You Did Not Take Part In The Process Of Cultivation
Section 4 of the Controlled Substances Act 1984 defines cultivation as:
planting a seed, seedling or cutting of the plant or transplanting the plant; or
nurturing, tending or growing the plant; or
harvesting the plant (including picking any part of the plant or separating any resin or other substance from the plant; or
taking part in the process of cultivation of the plant.

Thus, if it can be shown that you did not take part in any of these activities, you may have a defence to this charge.

It Was For Personal Use
It may be the case that you are a heavy user of cannabis and you were cultivating the plants for your own consumption. If there is evidence to support this claim, then it may be possible to have the charge downgraded to cultivation of cannabis (as opposed to cultivation of cannabis for sale), which carries with it a maximum penalty of 2 years imprisonment.

It Was Not More Than The Prescribed Amount For A Trafficable Offence
Schedule 3 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 sets the prescribed number of plants for a trafficable offence at 10. If you have less than 10 plants, then you may be successful in having the charge downgraded to a lesser offence.

It Was Only 1 Plant
Under Schedule 5 of the Controlled Substances (Controlled Substances, Precursors and Plants) 2014, the cultivation of 1 plant is an expiable offence. The maximum penalty is a fine of $300.

The Prosecution must prove that:

• you were in possession of a controlled plant;
• you had been involved in the cultivation of the controlled plant;

There are two elements to prove possession:

• being in physical control of the drug, and
• knowledge (or intention) of having the drug.

Section 33B(5) states that, if it is proved that you cultivated a trafficable quantity of plants, the intention to sell them is presumed. The onus to dispel that presumption lies with the Defence.

An offence that deals with trafficable quantities must be prosecuted by the Magistrates Court as a Summary offence, unless it is decided that the sentence should be greater than 2 years and thus will be committed to the District Court. An offence that deals with commercial quantities will be committed to the District Court by default.

Deciding whether or not to plead guilty has important implications and should be made after proper discussions with a criminal lawyer. Please come and see the helpful team at Caldicott Lawyers for assistance in your matter.

This legislation comes from section 33B of the Controlled Substances Act 1984.