With the advancement of our society, change in public perception, and restricting of the medical field, the stigma of certain “drug” usage has dropped dramatically during recent years, and its benefits has been proven scientifically on many levels.
According to a clinical research from The Hawaii Journal of Medicine & Public Health, The Therapeutic Benefits of Cannabis, medicinal marijuana user’s pain improvement on a scale of 1-10, was 5, with most patients (71%) reported no adverse effects.
It is well known that Cannabis is easy to obtain in Australia, it is THE most common “prohibited” drugs used in Australia. Participants in the Illicit Drug Reporting System (IDRS) and the Ecstasy and Related Drugs Reporting System (EDRS) reported that cannabis is deemed as ‘easy’ or ‘very easy’ to obtain. For example, in 2019, 36% of people aged 14 and over in Australia had used cannabis in their lifetime and 11.6% had used cannabis in the prior 12 months.
The most common legislative framework for the state of NSW can be found in the Drug Misuse and Trafficking Act 1985 (NSW) (‘The Act’), where it classifies a wide range of drugs as ‘prohibited drugs’ and ‘prohibited plants’.
The Act also creates offences for:
- The use of prohibited drugs;
- Possession of prohibited drugs;
- Supply and trafficking of prohibited drugs;
- Cultivation and possession or prohibited plants;
- Manufacture of prohibited plants;
- Aiding and abetting and taking part in offences involving prohibited drugs or plants; and/or
- Possession of drug use implements
National Criminal lawyers® often represents people who have been charged with the above mentioned offences, such as possession, and the supply of prohibited drugs.
Given the easy accessibility of cannabis and the change in public perception, it is important to note the laws in respect of possession of cannabis or otherwise growing a cannabis plant remains unchanged, where one cannot grow their own cannabis plant for their personal use. Even though the use of cannabis is not regarded as a strictly indictable offence, but the growing and cultivation of cannabis can bring some serious consequences depending the number of plants, and the nature of plants involved (personal use or commercial use).
Since 31 January 2020, Adults can legally grow, use and smoke cannabis in the ACT for personal use. Where if you’re aged 18 and over in the ACT, you can:
- possess up to 50 grams of dried cannabis or up to 150 grams of fresh cannabis
- grow up to two cannabis plants per person, with a maximum of four plants per household
- use cannabis in your home (personal use).
However, you still cannot:
- smoke or use cannabis in a public place
- expose a child or young person to cannabis smoke
- store cannabis where children can reach it
- grow cannabis using hydroponics or artificial cultivation
- grow plants where they can be accessed by the public.
Do not think that you can do the same in the state of NSW
In the state of NSW, the number of cannabis plants you can grow for personal use without a license is ZERO.
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.
In general, it is illegal to grow, cultivate and to harvest cannabis for personal use under the Drug Misuse and Trafficking Act 1985 (NSW).
Penalties for cultivating cannabis
The penalties for growing/cultivating cannabis for personal use are usually ranged from ‘less than a small quantity’, to ‘more than an indictable quantity but no more than a commercial quantity’.
Cultivation, supply or possession of prohibited plants less than a commercial quantity of cannabis plant/leaf is an offence under s 23(1) of The Act, which carries a penalty (on indictment) of 10 years imprisonment and/or 2,000 penalty units under Section 32 of the Act,
The cultivation, supply or possession of not less than the commercial quantity is an offence under s 23(2) which carries a penalty of 15 years imprisonment and/or 3,500 penalty units.
The value of one penalty unit is prescribed in Section 17 Crimes (Sentencing Procedure) Act and, currently, one penalty unit is equal to $110.
Quantity: Less than or equal to small quantity
# of Plants: 1 – 5
Local Court: 2 years imprisonment & or $5,500 fine.
District Court: 10 years imprisonment & or $220,000 fine
Quantity: More than small quantity, but less than or equal to indictable quantity
# of Plants: 6 – 50
Local Court: 2 years imprisonment & or $11,000 fine.
District Court: 10 years imprisonment & or $220,000 fine
Quantity: More than indictable quantity, but less than or equal to commercial quantity
# of Plants: 51 – 250
Local Court: 2 years imprisonment & or $11,000 fine
District Court: 10 years imprisonment & or $220,000 fine
Defences available
If you are unlucky enough to get yourself in trouble with growing/cultivating prohibited plants, such as Cannabis. In order for you to be found guilty of the offence, the prosecution must prove beyond reasonable doubt that you indeed cultivated; or knowingly took part in the cultivation of a prohibited plant; or you have supplied; or knowingly took part in the supply of a prohibited plant; or has prohibited plants in your possession.
Some of the possible defences available for those charged with cultivate prohibited plant can include:
- To maintain your innocence if you did not commit the act;
- To argue that you were not cultivating a plant;
- To argue that the plant was not prohibited;
- Necessity; or
- Duress; as the reason for your conduct
Should you or someone you know be charged with any Drug related criminal law matter, please feel free to contact National Criminal Lawyers® to speak with one of our specialist drug lawyers.