Cultivation of Prohibited Plants
In New South Wales, the offence of cultivation of prohibited plants refers to the act of growing, tending to, or harvesting illegal plants, most commonly cannabis, without proper authorisation or licence. This offence is governed under the Drug Misuse and Trafficking Act 1985 (NSW).
Cultivation includes:
Planting, sowing, growing, nurturing, or harvesting a prohibited plant
Taking steps to assist or promote the plant's growth (e.g. watering, fertilising, using grow lights)
Being found in possession of plants in a hydroponic setup or outdoor grow area
The offence applies whether the plants are being grown for personal use or commercial purposes.
The most commonly prohibited plant is cannabis sativa (marijuana). However, it also includes any plant prescribed in the legislation or regulations, such as certain psychoactive species used to manufacture illicit drugs.
What is Cultivation
of Prohibited Plants
The Penalties of
Cultivation of Prohibited Plants
The penalties for cultivation of prohibited plants are serious and escalate depending on the quantity of plants involved and whether the cultivation was for personal use or supply. The penalties include:
Cultivation (personal use)
Up to 5 plants
Maximum penalty: caution or fine
Cultivation – Small quantity
Up to 5 plants (more serious context)
2 years imprisonment and/or $5,500 fine
Cultivation – Indictable quantity
5–49 plants
10 years imprisonment and/or $220,000 fine
Cultivation – Commercial quantity
50–199 plants
15 years imprisonment and/or $385,000 fine
Cultivation – Large commercial quantity
200+ plants
20 years imprisonment and/or $550,000 fine
Certain aggravating factors can significantly increase the penalties for cultivating prohibited plants in NSW. These include the use of hydroponic systems, which are often associated with more sophisticated and concealed growing operations. Organised criminal involvement, where cultivation is part of a syndicate or network, also attracts harsher sentencing. The location of the cultivation plays a role too—if it occurs near schools or childcare centres, courts may impose heavier penalties due to the heightened risk to the community. Additionally, if there is evidence of intent to supply rather than personal use, the offence is treated more seriously. Finally, individuals with a prior criminal record or history of drug offences are likely to face stricter penalties, as repeat offending demonstrates a disregard for the law.
The Possible
Defence Strategies
Defending a cultivation of prohibited plants charge requires a careful analysis of the facts, evidence, and intent behind the alleged conduct. While these offences can carry serious penalties—especially for larger or commercial-scale operations—there are several possible defence strategies that may be used to fight or reduce the charge:
Lack of Knowledge or Intent
A key element the prosecution must prove is that the accused knowingly cultivated the plants. If it can be shown that the person did not know the plants were prohibited (e.g. cannabis), or was unaware they were growing on the premises (e.g. in a rental property), this may provide a strong defence.
No Control Over the Premises
If the accused did not have exclusive control or access to the location where the plants were found (such as a shared house or garage), it can be argued that someone else was responsible for the cultivation.
Medical or Legal Justification
In rare cases, the defence may argue that the cultivation was for medical purposes under a misunderstanding of legal access to cannabis (e.g. under the Medicinal Cannabis Program). While this won’t always excuse the offence, it may be used to mitigate the penalty or support a plea for leniency.
Police Misconduct or Illegal Search
If the plants were discovered during a warrantless or unlawful search, or if police breached procedural fairness during the investigation, the defence may seek to have the evidence excluded under the Evidence Act 1995 (NSW).
Mental Health or Cognitive Impairment
Where applicable, a lawyer may lodge a Section 14 mental health application, diverting the matter away from the criminal system if the accused suffers from a mental health or cognitive condition that contributed to the offending behaviour.
Challenge Quantity or Intent
If the number of plants is borderline between categories, the defence may argue the offence should be treated as personal use rather than supply, leading to significantly reduced penalties. Similarly, challenging the alleged intent to sell or distribute can be a crucial point of contention.
If you or someone you know has been charged with the offence of cultivating prohibited plants, obtaining immediate legal advice is critical. Our firm has deep experience in defending cultivation charges, ranging from small-scale personal use to the most serious large commercial quantity cases that carry lengthy prison sentences. These matters are complex and can escalate quickly, especially when the prosecution alleges intent to supply or organised criminal involvement.
At Sydney Defenders, we partner with an exclusive network of leading criminal barristers who are highly experienced and renowned for successfully defending cannabis-related offences in both the District and Supreme Courts. We provide more than just legal representation—we take a personalised approach, working closely with the accused and their families to explain the process, reduce stress, and ensure no step is missed. We also offer ongoing support after the matter concludes, because we understand the long-term impact these charges can have. With Sydney Defenders, you will have a robust and committed legal team dedicated to protecting your future and achieving the best possible outcome.