Cultivating or Selling Controlled Plants
Sections 616 and 618 of the Criminal Code make it an offence to cultivate a controlled plant in the Australian Capital Territory. Section 619 makes it a crime to sell a controlled plant. Although there are 24 plants listed on Schedule 2 of the Criminal Code Regulations that cannot legally be cultivated, these crimes are most commonly charged when people are accused of growing or selling marijuana (cannabis) plants. The penalties depend upon the number of plants that were cultivated and upon the purpose for which they were cultivated.
Cultivation of a plant includes:
- planting a seed, seedling or cutting of the plant or transplanting the plant; or
- nurturing, tending or growing the plant; or
- guarding or concealing the plant to prevent interference or discovery by humans or natural predators; or
- harvesting the plant, including picking any part of the plant.
Cultivating also includes:
- Directing or controlling the actions of another person who produces a controlled drug.
- Financing the production of controlled drugs.
- Cultivation of a controlled plant for selling (section 616)
- Selling a controlled plant (section 619)
Penalties for the crime of cultivating a controlled plant are more severe if the accused:
- cultivated the plant with the intent to sell it or any part of it; or
- cultivated the plant with the belief that someone would buy it or any part of it.
The penalties are the same whether an accused cultivates a plant in order to sell it or actually sells it after it has been grown. The penalties depend upon the number of plants involved in the crime. Since nearly all criminal charges for controlled plants relate to cannabis, the penalties described below are those that apply to the cultivation and sale of cannabis plants.
Large commercial quantities
Selling or cultivating large commercial quantities for sale carries a maximum sentence of life. A large commercial quantity of cannabis is 1,000 or more plants.
Selling or cultivating commercial quantities for sale carries a maximum sentence of 25 years. A commercial quantity of cannabis is 100 or more plants.
Selling or cultivating trafficable quantities of cannabis plants for sale carries a maximum sentence of 10 years. A trafficable quantity is 10 or more plants.
The accused is presumed to have cultivated the plants with the intent to sell them if the accused cultivated a trafficable quantity. The accused can avoid conviction of that offence by persuading the judge or jury that he or she cultivated the plants for some other purpose (such as personal use).
Selling or cultivating any lesser number of cannabis plants for sale carries a maximum sentence of 3 years.
Cultivation (section 618)
The cultivation of cannabis plants is a criminal offence that carries a maximum sentence of 2 years if:
- the accused cultivates 3 or more plants, or
- the accused cultivates 1 or 2 plants hydroponically or by using an artificial light source.
- Unlike cultivation for sale, the offence of cultivation does not require proof of an intent to sell the plants. The crime is therefore most likely to be charged when cannabis plants are grown for personal use.
- Cultivation of 1 or 2 plants (other than hydroponically or by using an artificial light source) is punishable by a fine under section 162 of the Drugs of Dependence Act.