Updated: Feb 21
The offence of Cultivate a Drug of Dependence is prosecuted under Drugs Poisons and Controlled Substances Act 1981 (Vic) (The Act).
Depending upon the quantity of drug alleged to have been cultivated, the offence may be heard and finalised in the Magistrates Court (Section 72B Cultivate a Drug of Dependence). Where a commercial or large commercial quantity is alleged the case must be heard in either the County Court (Section 72A Cultivate a Drug of Dependence - commercial quantity), or Supreme Court (Section 72 Cultivate a Drug of Dependence - large commercial quantity).
To successfully prosecute an accused under any of these provisions, the following elements must be proved beyond reasonable doubt.
Under Section 70 of The Act, 'cultivate' in relation to a narcotic plant includes—
(a) sow a seed of a narcotic plant; or
(b) plant, grow, tend, nurture, or harvest a narcotic plant; or
(c) graft, divide or transplant a narcotic plant.
Again, under Section 70, a 'narcotic plant' "means any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven and includes a cutting of such a plant, whether or not the cutting has roots".
Where the prosecution alleges a commercial or large commercial quantity of narcotic plants, these quantities must also be proved.
'commercial quantity' and 'large commercial quantity'
Part 2 of Schedule 11 of the Act sets out the commercial and large commercial quantities. Under Part 2, a commercial quantity of cannabis is 25 kgs or 100 plants, whereas a large commercial quantity is 1000 kilograms or 1000 plants.
Where the prosecution alleges an accused cultivated a commercial or large commercial quantity of a narcotic plant, the prosecution must also prove beyond reasonable doubt that the accused intended to cultivate that quantity (be it commercial or large commercial quantity). Refer to: R v Bui  VSCA 300; R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Garlick  VSCA 127); R v Garlick (No.2) (2007) 15 VR 388; R v Filipovic  VSCA 14; R v Page  VSCA 54; Brooks v R  VSCA 322).
To learn more about how an allegation of cultivate a commercial or large commercial narcotic plant can affect an accused's right to be released on bail read our blog.
The Act establishes 3 separate offences, and on a scale of seriousness the penalties are as follows:
Section 72B - Cultivate a Narcotic Plant: a maximum of 15 years imprisonment.
Section 72A - Cultivate a Narcotic Plant - commercial quantity: a maximum of 25 years imprisonment.
Section 72 - Cultivate a Narcotic Plant - large commercial quantity: life imprisonment, and 5000 penalty units.
Frequently, a charge of possess drug of dependence will be charged as an alternative offence to Cultivate a Narcotic Plant. Whether an accused Cultivated a narcotic plant may turn upon a factual dispute as to whether they were legally in possession of the narcotic plant. That is whether they had control or custody over the narcotic plant.
The Act also provides a statutory defence under section 72C, akin to an honest and reasonable belief defence, and provides:
"It is a good defence to a prosecution for an offence against section 72, 72A, 72B or 72D(2) involving the cultivation of a narcotic plant if the person charged with the offence adduces evidence which satisfies the court on the balance of probabilities that, having regard to all the circumstances (including his or her conduct) in which the matter alleged to constitute the offence arose or preparatory to the alleged commission of the offence, he or she did not know or suspect and could not reasonably have been expected to have known or suspected that the narcotic plant was a narcotic plant."
Because of this statutory defence, the prosecution does not need to prove an intention to cultivate. (unless as discussed above it is alleged a commercial or large commercial quantity) Consequently, the onus lies on an accused to establish evidence on the balance of probabilities that he or she did not know the plant in their possession was a narcotic plant.
As discussed above where the quantity of Narcotic Plant is not a commercial or large commercial quantity the case may be heard and finalised in the Magistrates' Court.
Cultivation of a commercial or large commercial quantity of a narcotic plant will frequently result in imprisonment. Sentencing, is a complex process, with many factors to be balanced, however as a general guide to sentencing outcomes when the case is heard in the Magistrates' Court (i.e. not a commercial or large commercial quantity), the Sentencing Advisory Council has published data on the sentencing outcomes for the period 2016 - 2019. Those outcomes were as follows:
Imprisonment - 16.7%
Community Correction Order - 25.2%
Fine - 38.7%
Adjourned undertaking/discharge/dismissal - 19.1%
Prepare early, get advice
The sentencing outcomes for the offence of Cultivate a Narcotic Plant will vary greatly depending upon the quantity cultivated, and whether the narcotic plant has been cultivated for the purposes of drug trafficking. If you are charged with Cultivate a narcotic plant, call our office on (03) 9668 7600 to arrange a case assessment, as early preparation is key in securing the best possible outcome.
Written by Shaun Pascoe, Director, Pascoe Criminal Law.