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  • Writer's pictureShaun Pascoe

Mitigating Circumstances: A Case Study of Cannabis Cultivation Charges in Broadmeadows Magistrates' Court

Updated: Feb 8


Table of Contents


 

Alleged Facts


Court where case heard:

Broadmeadows Magistrates' Court


Our client was served with charges alleging he trafficked a drug of dependence (cannabis), cultivated a drug of dependence (cannabis), and possessed a drug of dependence (cannabis).


The facts which gave rise to these allegations concerned the police executing a search warrant at our client's home and subsequently discovering 11 cannabis plants growing in a concealed area of our client's garage together with equipment designed to operate as an electricity by-pass.


Also found at our client's home was a quantity of dried cannabis. The cannabis seized (plants and dried material) was well under the threshold of a commercial quantity. The quantum of the electricity stolen could not be ascertained.


Maximum Penalties


The offence of trafficking a drug of dependence is prosecuted under s. 71AC of the Drugs Poisons and Controlled Substance Act 1981 (Vic) is an indictable offence punishable by a maximum penalty of 15 years imprisonment.


Cultivating a narcotic plant pursuant to s. 72B of the DPCSA attracts a maximum of 12 months imprisonment, or a fine of 20 penalty units or both if the Court is satisfied on the balance of probabilities that the cultivation was not related to trafficking in that plant.


Negotiations with the Prosecution


The fact relevant to the charge of trafficking was that the quantity of cannabis seized although well under a commercial quantity (25 kilograms or 100 plants) was a traffickable quantity (250 grams or 10 plants).


As a matter of law, the greater the illicit substance found the more readily an inference can be drawn that the substance/plant was not for personal use, hence the classification of a 'traffickable quantity' (see Scheduled 11, Part 2 of the DPCSA).


The quantity was however the only factor in support of the trafficking charge as the search warrant did not yield any equipment or proceeds relevant to trafficking activities. Our client's mobile phone was initially seized but later returned when an examination did not reveal communication pertaining to the sale of cannabis.


The absence of evidence supporting the trafficking charge was brought to the attention of the prosecution, and the charge was appropriately withdrawn. It was subsequently a significant factor in mitigation that the prosecution did not contend that our client's possession of cannabis was connected to trafficking and hence our client fell to be sentenced on the basis of cultivating a narcotic plant simpliciter (not connected to trafficking) as described above.


Submissions Before the Magistrate and Outcome


The offence of trafficking a drug of dependence was withdrawn, and a plea of guilty was entered to cultivate a narcotic plant and theft of electricity. During submissions to the court, medical material was provided as evidence that our client had developed an addiction to cannabis over many years by reason of his use of cannabis to alleviate chronic pain.


Several character references were tendered, and our client had no criminal history. Despite the sophistication of the grow room constructed by our client, and the use of an electricity bypass, our client avoided conviction and was fined $4000.


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