What is Cultivation of Cannabis?

The prosecution must prove that the plant was a controlled plant, that the accused cultivated the plant or took part in its cultivation and knew or could reasonably suspected to know it was a controlled plant.

To cultivate a controlled plant means to:

• Plant or transplant a seed, seedling or cutting.
• Nurture, tend or grow the plant.
• Harvest the plant.
• Drying the harvested plant or any part of the plant
• Taking part in any process of the cultivation.

If not more than 1 plant was cultivated, the police have discretion to deal with the matter as a simple cannabis offence and issue an expiation notice resulting in an on-the-spot fine. Once the fine is paid, the accused does not need to go court, and the offence is treated as being immediately spent. However, hydroponically grown cannabis is ineligible for an on-the-spot fine.

The Court also has powers to seek forfeiture and restraining orders for the property of prescribed drug offenders. A prescribed drug offender is someone who is convicted of a serious drug offence and has at least two previous convictions for prescribed drug offences in the last ten years.

In addition to being able to order fines and imprisonment, courts can order the forfeiture of property involved in offences under the Criminal Assets Confiscation Act 2005 (the Act). This is known as a forfeiture order. A “forfeiture order” is an order of a court for the forfeiture of property that is determined to be tainted property.

Upon conviction, all property owned by a prescribed drug offender is forfeited to the Crown. In certain circumstances, we can ask the Court to have certain property excluded from forfeiture. For example, if you cooperated with law enforcement and the cooperation relates directly to a serious and organised crime offence that has been committed or may be committed in the future.

Our criminal lawyers have successfully defended drug cultivation charges by raising the following defences to have the charges dismissed:

1. The plant was not a cannabis plants.
2. The plants did not have a root system.
3. The accused did not take part in cultivating the plant.
4. The accused did not know the plants were cannabis.
5. The accused did not know cannabis was being grown on their property.
6. The plants are grown under duress.
7. The plants are dead.

Simple cannabis offences and those involving the cultivation of not more than 5 cannabis plants, will be heard in the criminal jurisdiction of the Magistrates Court closest to where the accused person committed the offence. Offences involving a trafficable quantity or more will be heard in the District Court of South Australia.

Our client was charged initially charged with trafficking a large commercial quantity of cannabis pursuant to section 33 (1) of the Controlled Substances Act 1984 (SA).

The Penalty

The charge carried a maximum penalty of a fine in the amount of $1,000,000.00 and or life imprisonment in addition to criminal asset confiscation and forfeiture as it is presumed the proceeds of drug sales were used to purchase property.

Property Restraining Order

When the charge was initially laid, the DPP applied for a property restraining order, preventing our client from disposing, selling or otherwise dealing with his family home. This was a major indictable offence and would ultimately be heard in the District Court of South Australia.

Our client was extremely concerned that he would be required to serve a lengthy term of imprisonment and lose his family home. He had been living in rural South Australia and unknown to him, his neighbours commandeered his garden shed and established a commercial cannabis growing operation.

Initially, it was suggested that Our Client intended to sell more than 6kg of cannabis, and as such his home and assets were subject to an asset restraining order preventing him from dealing with his property.

No Conviction

Despite the overwhelming allegations, Our Adelaide Criminal Lawyer, Danial Esmaili, thoroughly reviewed volumes of evidence and successfully negotiated with the Prosecution to downgrade the charge to simple possession of cannabis in the amount of 1.1 kilograms which was still considered a trafficable quantity. The only way to overcome the presumption that he was a drug dealer was to persuade the Prosecution that it was for personal use.

Possession for Personal Use

This ultimately succeeded and a new charge was laid under section 33LA(2) of the Act which results in a $2,000.00 fine upon conviction and no asset forfeiture. In the end, the Court was persuaded that there was good reason pursuant to section 97 of the Sentencing Act 2017 (SA) to impose a penalty without recording a conviction upon Our Client entering a good behaviour bond for 3 years in the amount of $1000.00.

This was achieved by persuading the Magistrate that Our Client was unlikely to commit such an offence again, that the cannabis was entirely for personal use, and that his otherwise excellent character, lack of criminal record, old age, genuine remorse, substantial rehabilitation efforts and personal circumstances warranted a merciful approach.

As a result, the presiding Magistrate was persuaded that a conviction would disproportionately affect Our Client, and that it was not in the public interest to record a conviction. On that basis, the restraining order on his home was lifted. Our Client continues to enjoy living in Adelaide to-date.