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Cultivating Prohibited Plants (WA)

The criminal laws surrounding cannabis use in Western Australia were amended in 2011. The new laws seek to avoid criminalising cannabis use where the offender has possessed a small quantity of the drug and made no attempts to supply it. Those caught with a small amount of cannabis are dealt with by a Cannabis Intervention Requirement (CIR), which requires a person to undertake a Cannabis Intervention Session within 28 days. No criminal record results from being issued a CIR. Under the new laws, tough penalties remain in place for those caught cultivating prohibited plants with the intent to supply the drug to others.  A mandatory sentencing regime also exists in relation to certain cultivating offences.

The cultivation of cannabis can be done legally in Western Australia if it is done for medicinal purposes under the federal licensing scheme.

Cultivating prohibited plants offences

Under the Misuse of Drugs Act 1981 it is an offence to possess or cultivate a prohibited plant with intent to sell or supply the plant (Section 7(1)). This offence carries a maximum penalty of $20,000 fine or imprisonment for 10 years when being dealt with by the District Court or Supreme Court. A summary court can impose penalties of up to $5000 fine or imprisonment for 4 years. Under Section 11, there is a presumption that a person has an intent to sell or supply a prohibited plant if he or she cultivates more than 20 cannabis plants.

Under Section 7(2) of the Misuse of Drugs Act, cultivating prohibited plants is an offence. This offence carries a penalty of $2000 or imprisonment for 2 years. To cultivate, in relation to a prohibited plant, is defined as ‘to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant’

It is also an offence to sell or supply a thing knowing it will be used in the hydroponic cultivation of a prohibited plant (Section 7A).

Mandatory sentencing

Section 34 of the Misuse of Drugs Act sets out the maximum penalties for offences involving cultivating prohibited plants. It also provides a mandatory sentencing regime for offences affecting children.

Supply to a child

Where an adult is found guilty of supplying a prohibited plant to a child, he or she must be sentenced as follows:

  • For a first offence, a sentence of imprisonment, suspended imprisonment, or conditional suspended imprisonment;
  • For a subsequent offence – a term of imprisonment of at least 6 months that is not suspended.

Cultivating that endangers a child

If an adult is found guilty of cultivating prohibited plants in a way that endangered the life, health or safety of a child under 16, then he or she must be sentenced as follows:

  • For a first offence, a sentence of imprisonment, suspended imprisonment or conditional suspended imprisonment;
  • For a subsequent offence, a sentence of at least 6 months imprisonment, which is not suspended.

Cultivating that harms a child

Where an adult is found guilty of cultivating prohibited plants in circumstances where it caused bodily harm to child under 16, then he or she must be sentenced to imprisonment for at least 12 months, which is not suspended.

Fit and proper person can apply to grow cannabis

Under a federal licensing scheme, any person or company in Western Australia can apply for a licence to grow cannabis for medicinal purposes. To be granted a licence, the applicant must show that it has a suitable location, facilities and proposed security measures to ensure the cannabis is grown in compliance with the strict controls stipulated under the Narcotic Drugs Act 1967. The person must show that they are fit and proper and 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.

The first licence to grow cannabis in Western Australia was granted to the company Auscann in 2017. Auscann is now operating a secure outdoor cannabis farm in Western Australia.

If you require legal advice in relation to a criminal charge or any other legal matter, please contact Go To Court Lawyers.

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