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What is Cultivation?

Cultivation is the offence of growing narcotic plants. These are usually cannabis, opium or cocoa plants. Cultivation includes sowing or scattering the seeds of the plant or planting, growing, tending to, nurturing or harvesting the plant.

The Law

The offence of Cultivate Prohibited Plant is contained in section 23 of the Drug Misuse and Trafficking Act 1985 (NSW) and states a person who:

cultivates, or knowingly takes part in the cultivation of, a prohibited plant, supplies, or knowingly takes part in the supply of, a prohibited plant, or has a prohibited plant in his or her possession, is guilty of an offence.

What must the prosecution prove?

Since Cultivation is a criminal offence, the burden of proof lies with the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Cultivate Prohibited Plant. To be convicted the police must prove;

  1. That you cultivated a plant; and
  2. That the plant was a prohibited plant.

If you are charged with the offence of CULTIVATE what are your options?

National Criminal Lawyers (NCL) have been successful in defending a large number of cultivate Prohibited Plant charges where the prosecution could not establish each of the elements of cultivate. We have also achieved a number of non-convictions for cultivate Prohibited Plant charges.

NCL offer the following options for those who have been charged with cultivate Prohibited Plant:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended ;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing)with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Cultivate Prohibited Plant can be punished with a prison sentence of up 2 years (If heard in the local Court) or a prison sentence of up to 10 years (If heard in the District Court).

If the person is growing the prohibited plan for a commercial purpose, then the maximum penalty for the offence is 15 years imprisonment.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with Cultivate and are experts at these hearings.


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


The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Cultivate 35% of offenders received a fine whereas 31% received a s9 Good behaviour bond.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Supply prohibited drug charge.

  • Prison sentence
  • Home Detention
  • Intensive correction order (previously periodic detention)
  • Suspended sentence
  • Community service order (CSO)
  • Good behaviour bond
  • Fine
  • Section 10


However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment
  • New ICO (ICO) with a home detention condition available
  • New Community Correction Order (CCO)
  • Fine
  • New Conditional release Order (CRO)

Case Studies

Our client was charged with one count of cultivate a prohibited plant (Cannabis). After entering a plea of guilty, we represented our client in his sentencing hearing. We presented strong character evidence, proven attempts at rehabilitation, and the impact on his career. Our client received a discharge without record of conviction.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

Book your first free appointment with National Criminal lawyers now.
CONTACT US! 02 9893 1889

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