Cultivating cannabis by enhanced indoor means is an offence under section 23 of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty varies between imprisonment for 15 and 20 years, depending on the number of cannabis plants. This charge may not be heard by a magistrate in the Local Court and must be heard in the District Court.
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This charge is often used where a person is alleged to have grown cannabis for commercial purposes in residential premises. The offence is committed if a person cultivates, or knowingly takes part in the cultivation of, more than 5 cannabis plants by enhanced indoor means for a commercial purpose.
- To sow or scatter cannabis seeds, and
- To plant, grow, tend, nurture cannabis plants.
“Cultivate by enhanced indoor means” includes cultivation of the plant:
- That occurs inside a building or structure, and
- That involves any one or more of the following:
- The nurture of the plant in nutrient-rich water
- The application of an artificial source of light or heat
- Suspending the plant’s roots and spraying them with nutrient solution.
Cultivating cannabis for a “commercial purpose” includes cultivating the plant:
- With the intention of selling it or any of its products, or
- With the belief that another person intends to sell it or any of its products.
What the prosecution must prove
To prove this charge, the prosecution must show beyond reasonable doubt that:
- The person takes, or participates in, any step, or causes any step to be taken, in the process of cultivating cannabis;
- The person provides or arranges finance for any such step in that process; or
- The person provides the premises in which any such step in that process is taken, or permits any such step in that process to be taken.
You may have a defence if the court is satisfied that you did not know or suspect and could not reasonably be expected to have known or suspected that the plant was a prohibited plant.
This is usually referred to an honest and reasonable mistake of fact.
Will I receive a criminal record, and could I go to jail?
Upon conviction, you will receive a criminal record and are liable to imprisonment. However, the maximum term of imprisonment depends upon the number of cannabis plants grown, as follows:
- If you are charged with more than a small quantity, being 5 plants, but not more than a commercial quantity, being 50 plants: imprisonment for 15 years.
- If you are charged with more than a large commercial quantity, being 200 plants: imprisonment for 20 years.
The courts regard the cultivation of cannabis as a serious crime. In the decision of R v Nguyen; R v Cannistra  NSWCCA 389 it was stated:
“Although in former years some people accepted marijuana as a “recreational drug” and believed that it did not have the addictive qualities and potential to damage the health of users which can occur with “hard drugs”, this assumption has more recently been called into serious question. It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons.”
The courts have held that the cultivation of cannabis for profit will usually attract a term of imprisonment unless there are exceptional circumstances.
On sentence the court will consider (among other things) the circumstances of the offence including whether some, or all, of the cultivated plants were for the personal use of the offender. In addition the court will consider whether the offender has a prior criminal record, whether they entered a plea of guilty, whether they have begun drug rehabilitation, as well as their employment and medical history.