What the law states
Section 23 of the Drug Misuse and Trafficking Act 1985 (NSW) states that:
(1) A person who:
(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant,
(b) supplies, or knowingly takes part in the supply of, a prohibited plant, or
(c) has a prohibited plant in his or her possession,
is guilty of an offence. The offence includes cultivating plants of different quantities for a commercial purpose.
Example of this offence
A common example of these offences includes being responsible for growing a large supply of cannabis which you intend to cultivate and sell.
In which court will my matter be heard?
Offences with respect to prohibited plants fall under Part 2, Division 2 of the Drug Misuse and Trafficking Act 1985 (NSW). This means that these offences are considered indictable offences, and are heard in the District or Supreme Court.
Indictable offences such as the offence in subsection (1) can be dealt with summarily (in the local court) unless the prosecution elects otherwise. This is possible only if the quantity of the drug is not more than the small quantity specified in Schedule 1, Column 2 of the Drug Misuse and Trafficking Act 1985 (NSW), and not more than the indictable quantity. The quantity varies for each type of drug. Click here for the quantities of drugs and the applicable offences.
Penalties
If an offence such as this is dealt with summarily, the maximum penalty for an offence involving:
- a small quantity is a fine of $550 or 2 years imprisonment or both.
- a quantity exceeding a small quantity but not more than the indictable quantity is a fine of $1100 or 2 years imprisonment or both.
Defences
Defences to offences with respect to prohibited plants include but are not limited to duress and necessity. Also, the accused can claim that they did not know the plant was a prohibited plant, cultivation was for scientific research, or they were acting under the direction given by the Commissioner of Police under section 39RA of the Drug Misuse and Trafficking Act 1985 (NSW) (the use of prohibited plants and prohibited drugs in controlled operations and integrity testing programs).
Penalty
The maximum penalty for offences with respect to prohibited plants, of which the quantity is less than that required for commercial use, according to the law in section 23(1) is a fine of $220,000 or a term of 15 years imprisonment or both. Where the offence relates to a cannabis plant or leaves, a fine of $220,000 applies or imprisonment for 10 years, or both.
The maximum penalty for offences with respect to prohibited plants of which the quantity is not less than that required for commercial use, is a fine of $385,000 or 20 years imprisonment or both. Where the offence relates to a cannabis plant or leaves, a fine of $385,000 applies or imprisonment for 15 years or both.
If the quantity of drugs is not less than a large commercial quantity, the maximum penalty is $550,000 or life imprisonment or both, and where the offence relates to cannabis plant or leaves, a fine of $550,000 applies or 20 years imprisonment or both.
How can Prime Lawyers help you?
Our criminal lawyers are experienced in representing people who have been charged with offences with respect to prohibited plants. We will advise you on your chances of successfully defending your matter and thus being found ‘not guilty’. If you are pleading guilty, we will represent you at court to help minimise the punishment you receive. If the Police’s case is weak against you, it may be possible to write to them and have them withdraw the charges against you. There are severe imprisonment terms which can be ordered by the Court and thus it is important that you seek advice from a criminal lawyer. We will fight vigorously to protect your rights.