Cultivating cannabis can be committed by cultivating a cannabis plant with the intention of selling any of it or its products, or by cultivating a cannabis plant believing that another person intends to sell any of it or its products.
What court will hear the matter
An offence that deals with trafficable quantities will be dealt with in the Magistrates Court of South Australia as a summary offence unless it is decided that the sentence should be greater than 2 years imprisonment and be committed to the District Court of South Australia. The District Court of South Australia deals with commercial quantities.
What the prosecution must prove
The prosecution must prove that:
- you were in possession of a controlled plant;
- you had been involved in the cultivation of the controlled plant.
There are two elements to prove possession:
- being in physical control of the drug; and
- knowledge (or intention) of having the drug.
Section 33B(5) of the Controlled Substances Act 1984 states that if it is proved that you cultivated a trafficable quantity of plants, the intention to sell them is presumed. The onus of dispelling that presumption is placed on the defence.
There are a range of possible defences including, but not limited to, the following:
- it is not cannabis;
- you did not know it was cannabis;
- the plants were dead;
- the plants did not have a root system;
- you did not take part in the process of cultivation;
- personal use;
- it was not more than the prescribed amount for a trafficable offence;
- it was only 1 plant.
The maximum penalty for cultivation for sale varies depending on the number of plants. For sentencing purposes, large commercial quantity means 100 plants, commercial quantity means 20 plants, and trafficable quantity means 10 plants. The maximum penalties are as follows:
- large commercial quantity: $500,000 fine or life imprisonment or both;
- commercial quantity: $200,000 fine or 25 years imprisonment or both;
- trafficable quantity: $50,000 fine or 10 years imprisonment or both.