Cultivating cannabis is an offence under section 23 of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment between 10 years and 20 years, depending on the number of cannabis plants cultivated. However, if the number of cannabis plants is less than 250 the charge may be dealt with by a magistrate in the Local Court. In such a case the maximum penalty that the magistrate may impose is imprisonment for 2 years.
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What the prosecution must prove
To prove cultivation of cannabis, 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 cultivation;
- 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.
“Cultivates” is defined by the Act as including:
- To sow or scatter cannabis seeds, and
- To plant, grow, tend, or nurture cannabis plants
Defences to Cultivating Cannabis
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.
Will I get 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 not more than a small quantity, being 5 plants: imprisonment for 10 years.
- If you are charged with more than a small quantity, being 5 plants, but not more than an indictable quantity, being 50 plants: imprisonment for 10 years.
- If you are charged with more than an indictable quantity, being 50 plants, but not more than a commercial quantity, being 250 plants: imprisonment for 10 years.
- If you are charged with more than a commercial quantity, being 250 plants, but less than a large commercial quantity, being 1000 plants: imprisonment for 15 years.
- If you are charged with more than a large commercial quantity, being 1000 plants: imprisonment for 20 years.
For the full range of penalties that can be imposed, see our Sentencing Options page.
Whether or not you will receive a term of imprisonment depends on the objective seriousness of your charge, as well as the particular subjective circumstances of your case. Generally, the courts regard the cultivating 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 cultivating 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.