If you have been charged with cultivation of narcotic plants, here is some information to know and consider in seeking legal advice with Emma Turnbull Lawyers.
Elements of the offence
For the prosecution to prove the offence of cultivation of narcotic plants they must satisfy four elements of the offence. They can be found in s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and are as follows:
- The accused intentionally cultivated a plant; and
- The plant cultivated by the accused was a narcotic plant.
The prosecution must further prove that, on the balance of probabilities, the accused knew or suspected, or should have reasonably known that the plant they were cultivating was a narcotic plant.
Will I have to go to court?
Charges for cultivation of narcotic plants will usually be heard in the Magistrates’ Court. However, depending on the circumstances of the offence, the case may be heard in the County Court.
It is unlikely that a charge for cultivation of narcotic plants will go to a trial with a jury; it will usually be heard by a Magistrate or Judge.
Once the case goes to court, it is up to the prosecution to prove the elements of the offence. It is important that you seek expert legal advice in building a defence as the circumstances surrounding the events that led to the charge can assist in a strong defence argument.
The maximum penalty for this offence varies under s 72B; and is dependent on whether the cultivation of the plant was for the purpose of trafficking or not. Where, on the balance of probabilities, the cultivation was not for the purpose of or related to trafficking, the maximum penalty is 1 year imprisonment, known as a Level 8 imprisonment.
Where it is found that the cultivation was for the purpose of or related to trafficking, the maximum penalty carried is 15 years imprisonment, known as Level 4 imprisonment.
What sentences are usually given?
According to the Sentencing Council Victoria, between 1 July 2011 and 30 June 2016, 214 people were sentenced with cultivation of narcotic plants as the principal offence. From that number, 50% were given imprisonment sentences, with a maximum term of 4.75 years. The median length of an imprisonment sentence was 1 year.
Non-imprisonment sentences included Community Corrections Orders (9.8%) and fines (7.5%).
What do I do now?
To ensure the best chance of a successful defence, it is important to get in contact with an expert criminal lawyer as soon as possible. At Emma Turnbull Lawyers, we have experienced criminal defence lawyers who can assist you in defending this charge.