The maximum penalty for the charge of cultivate prohibited plant (Section 23 of the Drugs Misuse and Trafficking Act) is a fine of 2000 penalty units and/or 10 years imprisonment.
In NSW, a court can impose any of the following penalties for an cultivate prohibited plant charge.
Section 10: cultivate prohibited plant proven but dismissed
Good behaviour bond
Community service order (CSO)
Intensive correction order (previously periodic detention)
You'll find a brief description of each of these penalties at the bottom of this page.
Based on our experience and statistics from the Judicial Commission of New South Wales we believe that the penalty in a case that is within the mid range of seriousness for the offence of cultivating a prohibited drug, if heard in the Local Court is likely to be a fine of $500.
If this matter is finalised in the District Court the likely penalty is an intensive correction order for a period of 2 years.
However, the likely penalty will change depending on the quantity of the prohibited drug. The above figures are for a cultivation of an amount less than commercial quantity only.
Which court will hear your Cultivate prohibited plant charge in NSW:
Where the number of prohibited plants exceeds the indictable quantity, this matter is strictly indictable which means that it can only be finalised in the District Court.
Where the number of prohibited plants does not exceed the indictable quantity, this matter is a Table 1 offence which means that either the DPP or an accused can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.
Where the number of prohibited plants does not exceed the small quantity,this matter is a Table 2 offence which means that the DPP can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.
What the police must prove:
To convict you of a cultivate prohibited plant charge, the police must prove each of the following matters beyond a reasonable doubt:
You cultivated, or knowingly took part in the cultivation of,
a prohibited plant.
They will also need to prove that you were the person who committed the cultivate prohibited plant offence.
Possible defences for Cultivate prohibited plant
Possible defences to an cultivate prohibited plant charge include but are not limited to:
Types of penalties:
Section 10 for an cultivate prohibited plant charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you,but to give you a Section 10 dismissal instead.
Fines for an cultivate prohibited plant charge: When deciding the amount of a fine for a cultivate prohibited plant charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set.
Good behaviour bond for an cultivate prohibited plant charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years.
Community service order for an cultivate prohibited plant charge. (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order.
Suspended sentence for an cultivate prohibited plant charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond.Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years.
Periodic detention for an cultivate prohibited plant charge (commonly known as weekend detention): This form of imprisonment ceased to be a sentencing option in October 2010.
Intensive correction order for an cultivate prohibited plant charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment,not consuming alcohol, complying with a curfew and performing community service.
Jail for an cultivate prohibited plant charge: This is the most serious penalty for the charge of cultivate prohibited plant and involves full time detention in a correctional facility.
For more information contact Armstrong Legal:
Level 4 127 York Street Sydney, NSW 2000 (Opposite the Queen Victoria Building) Phone: (02) 9261 4555 After Hours: 0404 55 88 33