Cultivate Cannabis or Prohibited Plant by Enhanced Indoor Means

Lawyers NSW

What is Cultivate Prohibited Plant?

 

Under Section 23 of the Drugs (Misuse and Trafficking) Act 1985, it is an offence to cultivate cannabis by enhanced indoor means.

 

It will be alleged that the accused has cultivated cannabis in residential premises for the purposes of sale and profit. It will be considered for commercial purposes in circumstances where there are more than 5 cannabis plants present in the cultivation.  

 

Cultivate, by definition can also include the action of scattering seed, planting, growing, tending, nurturing or harvesting the plant.

Enhanced Indoor Means can mean that the cultivation is occurring:

  • In a building or built physical structure;

  • Where the plant is present in nutrient rich soil and

  • Artificial light and ventilation is present

 

What the Prosecution need to Prove (Beyond a Reasonable Doubt):

  • The accused cultivated, or knowingly took part in the cultivation process of a prohibited plant; or

  • The accused provided financial assistance to the cultivation process; or

  • The accused provided the premises in which the cultivation took place

  • The accused had prohibited plants in their possession.

  • The existence of the number of plants

 

The Prosecution will need to prove evidence of the actual cultivating of the plant through through various forms of evidence such as photographs, phone intercepts, identification footage, witness testimony.

An accused’s prospects of successfully defending this charge will be increased if the Crown case is based on only one witness testimony and especially if that witness giving the evidence is a former associate who has turned informant and is now giving evidence against fellow syndicate members. The reliability of such witness would come under intense scrutiny by the Defence. Any ambiguous phone intercepts or text messages would also come under close analysis.

The Number of Plants is crucial

If there are more than 50 plants, they will be considered as existing for the purposes of supply, even if no such evidence of supply is there. This is known as a deeming provision under the Drugs (Misuse and Trafficking) Act 1985. Even if the amount is less than 50 plants, the accused would still have to prove on the balance of probabilities of that the drug was not meant for supply.

 

Going to Court – "What am I looking at?"

Not only does the number of plants determine whether the deeming provision applies, but it also establishes if the matter is to remain in the Local Court, or whether it will be sent to the District court where harsher penalties apply. If the number of plants is less than the commercial quantity, the offence would be dealt with in the Local Court where the maximum penalty would be limited to 2 years imprisonment.

 

 

 

 

 

 

Lawyer Call here to help..

At Lawyer Call, we strive to achieve the best possible results for all our clients, with a skilled group of Lawyers and Barristers able to assist you with your matter. For very serious Drug cultivation charges, it is crucial to secure the services of a strong legal team. Lawyer Call briefs some of the State’s most respected and trusted Barristers with vast experience in Drug Offences, and together we will continuously provide you with legal assistance and preparation.

 

For pleas of guilty, we place a huge emphasis on addressing the objective seriousness of the offence, the likelihood of reoffending, and the prospects of rehabilitation, in an attempt to show that a non-custodial sentence is perhaps more appropriate. We believe that there are cases where Judges should be permitted to shift away from the usual sentencing principles of issuing a term of imprisonment on an accused for such matters.

Contact Lawyer Call today for expert advice from a Drug Offence Solicitor.

 

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