Since 2016, it has been possible to legally grow cannabis for medicinal use in Australia. In the last two years, the Victorian Government has made plans for that state to become the hub of medical cannabis in Australia, with the growing industry touted as one that will create jobs, attract investment and develop a range of high quality products to meet the needs of patients. However, the cultivation of cannabis remains a serious criminal offence in Victoria, unless it is done under very tight controls and for medicinal use only. This article will outline the laws around cultivating cannabis in Victoria, in both lawful and unlawful contexts.
Medicinal cannabis in Victoria
The Narcotic Drugs Act 1967 now contains a provision under which a person in Australia may apply for a medicinal cannabis licence (Section 8E). Once a person (whether a company or a natural person) has obtained a licence, they are permitted to obtain, cultivate and produce cannabis plants or cannabis resin for medicinal purposes. This is required to be done under strict controls. The person must have a suitable location, facilities and proposed security arrangement for the activities to take place. In order to obtain a licence, a person must also show that they are a fit and proper person, that they have not committed a serious offence in the last 10 years and that they will take all necessary steps to ensure the physical security of the cannabis. A licence will only be issued if the Health Department is satisfied that it is appropriate to do so.
Victoria produced its first legal crop of cannabis in 2017, becoming the first Australian state to produce medicinal cannabis locally. The crop is being developed into a medication for use by children suffering from severe intractable epilepsy. Cannabis plant contains different compounds, cannabinoids and terpene, which have various different effects on the human body. Medicinal products can be manufactured from cannabis plant for use by individuals suffering from medical conditions such as MS, epilepsy, chronic pain, epilepsy and HIV.
Patients in Victoria who require medicinal cannabis products may obtain a prescription for a suitable product from their doctor if he or she considers it likely they will benefit from such a product. There is currently only on medicinal cannabis product which is approved for use in Australia, meaning that patients requiring other products which must be imported will have to obtain approvals from the Commonwealth Therapeutic Goods Administration and the Department of Health prior to these products being prescribed.
Sufferers of chronic pain and illness and their families are applauding the development, which means they can now legally access products that vastly improve their quality of life and that these products can now be produced locally, making them more easily accessible. The Victorian Government has announced its intention for Victoria to supply half of Australia’s medicinal cannabis market by 2028 and estimates this will bring in around $90 million per year and create 500 new jobs. There are also plans for Australia to export medicinal cannabis products in the future. However, criticisms have been made of the move, with possible side effects of medical marijuana being cited as a concern as well as the possibility that the stigma around recreational cannabis use may be reduced because of its legalisation for medicinal purposes.
The offense of cultivating cannabis in Victoria
Cultivating cannabis is an offence in all states and territories when it is done otherwise than under the Federal licencing scheme. In Victoria, it is an offence to cultivate or attempt to cultivate a narcotic plant under the Drugs, Poisons and Controlled Substances Act 1981 (Section 72B). Courts have interpreted the term ‘cultivation’ as including ‘all activities associated with production from the soil, including preparing the soil, sowing, fertilising, tending and caring for the plants, and finally harvesting the crop.’ (King CJ in R v Giogio and Romeo).
Cultivation can be carried out on a tiny scale, consisting of a single pot plant in someone’s home, or on a medium, large or huge scale, with plants harvested with the use of a sophisticated hydroponic system (‘cultivation by enhanced indoor means’, which forms a separate offence in some jurisdictions) or outside on a rural property.
In Victoria, the maximum penalties for cultivating cannabis offences are as follows:
|Any number or quantity||Cultivating narcotic plant||Maximum 20 penalty units or 12 months imprisonment if court is satisfied the plants were not intended for trafficking purposes
In all other case maximum 15 years imprisonment
|More than 100 plants or 25 kilograms||Cultivating commercial quantity narcotic plant||Maximum 25 years imprisonment|
|More than 1000 plants or 250 kilgrams||Cultivating large commercial quantity narcotic plant||Maximum life imprisonment|
As the above table suggests, cultivation offences cover a wide range of different types of offending with different levels of culpability and different maximum penalties. While the maximum penalties stipulated above refer to periods of imprisonment and fines, there are other, lesser sentences that will be handed down in some cases. A charge involving growing a small amount of cannabis for personal use (be it recreational or medical use), may be dealt with by way of a Good Behaviour Bond or even through a Diversionary Program. Conversely, where a person is growing the plant as a commercial operation without a licence, a lengthy custodial sentence can be expected.
Cultivation of cannabis without a licence remains a serious offence in Victoria. As the circumstances of every alleged criminal offence is different, it is important to seek legal advice at the earliest opportunity. If you have been charged with a cannabis offence, please call the Go To Court Hotline 1300 636 846.