Bench Notes Trafficking Large Commercial Quantity

7.7.2 - Cultivation of Narcotic Plants1 7.7.2.1 - Bench Notes

Commencement Information

1. The Drugs, Poisons and Controlled Substances Act 1981 (the “Drugs Act”) establishes three separate cultivation offences, each of which came in to force on 1 January 2002:

i) Section 72 – Cultivation of a large commercial quantity of narcotic plants;

ii) Section 72A – Cultivation of a commercial quantity of narcotic plants; and

iii) Section 72B – Cultivation of narcotic plants.

Elements

2. For each of the cultivation offences, the prosecution must prove the following elements beyond reasonable doubt:

iv) That the accused intentionally cultivated or attempted to cultivate a particular substance; and

v) That it was a narcotic plant that the accused cultivated or attempted to cultivate.

3. In relation to ss72 and 72A the prosecution must also prove that the accused intentionally cultivated, or attempted to cultivate, not less than a large commercial or commercial quantity of narcotic plants respectively.

4. Each of the cultivation provisions exclude from their scope people who are authorised or licensed to cultivate a narcotic plant (see “Authorisation and Licensing” below).

“Cultivation”

5. Section 70(1) defines “cultivate” to include:

sowing a seed of a narcotic plant; or

planting, growing, tending, nurturing or harvesting a narcotic plant.

6. This definition has been amended by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006, to include grafting, dividing or transplanting a narcotic plant. The new definition commences operation on 1 May 2007 unless proclaimed earlier.

1 This document was last updated on 21 January 2011.

1 7. The definition of “cultivate” is inclusive and should not be treated as exhaustive or read down (see, e.g., Eager v Smith (1988) 38 A Crim R 272 (NSW SC) in relation to a similar NSW provision).

8. In New South Wales, the acts of watering a plant or a seed, and keeping a seed in wet tissue paper with the intention of eventually harvesting a fully grown plant, have been held to be acts of “cultivation” (Eager v Smith (1988) 38 A Crim R 272 (NSW SC)).

9. In South Australia it has held that the definition of “cultivation” includes helping to harvest a crop. This is because the term “cultivation” is intended to incorporate the whole process of producing a drug from the soil. It therefore includes all activities associated with production from the soil, from preparing the soil to removing and stacking the harvested crop (Giorgi and Romeo v R (1982) A Crim R 305 (SA CCA)).

10. In South Australia it has also been held that a land owner who provides land for cultivation has “cultivated” the plants grown on that land (Pettingill v R (1985) A Crim R 130 (SA SC)).

11. Evidence that a person possessed cannabis seeds will not, by itself, be sufficient to prove cultivation. However, such evidence may be taken into account, with all of the other evidence, when determining whether the accused cultivated a narcotic plant (Orchard v R (1993) 70 A Crim R 289 (NSW CCA)).

12. Evidence that a person possessed cannabis is not evidence that they cultivated the plants which produced the cannabis (Natale v R (1988) 38 A Crim R 122 (Vic CCA)).

13. In Queensland it has been held that while an isolated act may constitute cultivation, normally the activity of cultivation is a continuing one. It is usually constituted by repeated or varying acts, performed with the purpose of fostering the growth of plants and achieving a final harvest from those plants (R v Stratford and McDonald (1984) 1 Qd R 361).

14. In cases involving ongoing activity, it is the whole of the continuing activity which constitutes the cultivation. In cases involving individual acts, the acts themselves constitute the cultivation (R v Stratford and McDonald (1984) 1 Qd R 361).

15. The relevant act of cultivation must have been performed intentionally. It may therefore be necessary to differentiate intentional acts of cultivation from unintentional acts, such as the accidental application of water to a plant, or any other acts which may have the unintended effect of encouraging the growth of a plant (R v Stratford and McDonald (1984) 1 Qd R 361).

Attempted Cultivation

16. Each of the cultivation provisions make it an offence to cultivate or

2 “attempt to cultivate” in the specified manner. A person can therefore be charged with attempted cultivation directly under ss72, 72A or 72B of the Drugs Act, rather than having to rely on s321M of the Crimes Act 1958.

17. A person charged with attempted cultivation under one of these provisions will be subject to the same penalties as a person charged with cultivation. In contrast, a person who is charged with attempted cultivation under s321M of the Crimes Act 1958 will be subject to the lesser penalties set out in s321P of that Act.

18. Section 321N of the Crimes Act 1958 sets out the conduct that will constitute an attempt. This section applies to a person charged with attempted cultivation under the provisions of the Drugs Act by virtue of s321R of the Crimes Act 1958.

19. For more information about attempts see Attempts (Topic not yet completed).

“Narcotic Plant”

20. The plant cultivated by the accused must have been a “narcotic plant”. Section 70(1) defines “narcotic plant” to mean “any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven” of the Drugs Act. This includes cannabis, as well as two types of coca plant and two types of opium poppy.

21. The definition of “narcotic plant” has been amended by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006, to include a cutting of such a plant, whether or not the cutting has roots. This Act also amends the plants included in Part 2 of Schedule Eleven. The new provisions commence operation on 1 May 2007 unless proclaimed earlier.

22. Section 120 of the Drugs Act provides that a certificate purporting to be signed by an analyst with respect to any analysis or examination he or she has made shall be sufficient evidence of the identity of the substance analysed, of the result of the analysis and of the matters relevant to the proceedings as stated in the certificate. Section 120 also provides that a certificate purporting to be signed by a botanist shall be sufficient evidence of the identity of the substance examined. There is no need to provide proof that the person who signed the certificate is an analyst or botanist, or to provide proof of their signature.

23. The provisions in s120 do not apply if the certificate was not served on the defence at least seven days before the hearing, or if the defence, at least three days before the hearing, gave notice in writing to the informant and the analyst or botanist that the analyst or botanist is required to attend as a witness (s120(2)).

3 No Need to Prove an Intention to Cultivate a Narcotic Plant

24. Although the related offences of trafficking (see Trafficking: Bench Notes) and possession (see Possession of a Drug of Dependence: Bench Notes) require the prosecution to prove that the accused intended to traffick in or possess a drug of dependence, there is no similar requirement in relation to the cultivation offences. The prosecution does not have to prove that the accused intended to cultivate a narcotic plant (R v Pantorno [1988] VR 195).

25. This is because of s72C of the Drugs Act. This section states that it is a defence to a charge of cultivation if the accused can prove that they did not know or suspect, and could not reasonably have been expected to have known or suspected, that the narcotic plant was a narcotic plant (see “Knowledge of the Nature of the Plant” below). It has been held that this section places the onus on the accused to prove, on the balance of probabilities, that they did not have the requisite intention, rather than requiring the prosecution to prove that intention (R v Pantorno [1988] VR 195).

Quantities

Commercial and Large Commercial Quantities

26. There are two cultivation offences that specify the quantity of narcotic plants that must be cultivated if an accused is to be found guilty:

 Section 72 – cultivation of a “large commercial quantity”; and

 Section 72A – cultivation of a “commercial quantity”.

27. “Large commercial quantity” is defined in s70(1) of the Drugs Act, and includes the quantity of drugs, or the number of plants, specified in column 1A of Part 2 of Schedule Eleven to the Act.

28. “Commercial quantity” is defined in s70(1) of the Drugs Act and includes the quantity of drugs, or the number of plants, specified in column 2 of Part 2 of Schedule Eleven.

29. The offence of cultivating narcotic plants under s72B does not require proof that the accused cultivated any particular quantity of narcotic plants.

30. The quantities of drugs included in Part 2 of Schedule Eleven were recently modified by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006, with the new provision commencing operation on 1 May 2007 unless proclaimed earlier.

Determining Quantity

31. The quantity of Cannabis L can be determined either by weight or by the number of plants. The quantity of the other narcotic plants

4 specified in Part 2 of Schedule Eleven must be determined by weight.

32. If determining the quantity by weight, it is appropriate to make the measurement in light of the conditions existing at the time that the offence is seen to have been committed (R v Coviello (1995) 81 A Crim R 293 (Vic CCA)).

33. In relation to cannabis, this means that if a crop was “green” at the relevant time, it is the weight of the drug in such a condition which is to be measured. The quantity is not what it would be when dried, even though the drug only becomes usable when in that condition (R v Coviello (1995) 81 A Crim R 293 (Vic CCA)).

34. If determining the quantity by the number of plants, it may be necessary to define the meaning of the word “plant”. It has been held that while the word is an ordinary English word, the jury should not be left at large to determine its meaning, because it is capable of a wide range of interpretations. Where relevant to the issues in the trial, the judge must tell the jury the meaning of the word in its statutory context (R v Francis-Wright (2005) 11 VR 354).

35. It has been held that a cutting of cannabis becomes a plant when it develops a root. It can then be regarded as an entity separate from the plant from which it has been cut, rather than being a part of that plant. The root need not be a root system, nor does it need to be viable. Once a cutting becomes a plant, it continues to be a plant, even if it dies (R v Francis-Wright (2005) 11 VR 354).

36. As the word “plant” is an ordinary English word, expert evidence about its meaning is inadmissible (R v Francis-Wright (2005) 11 VR 354).

37. The definition of “narcotic plant” has recently been amended by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006, to include “a cutting of such a plant, whether or not the cutting has roots”. It seems likely that this amendment, which commences operation on 1 May 2007 unless proclaimed earlier, will override the method for determining the number of plants set down in R v Francis-Wright (2005) 11 VR 354.

Intention to Cultivate a Particular Quantity of Plant

38. Because the offences specified in ss72 (cultivating a large commercial quantity) and 72A (cultivating a commercial quantity) are defined by quantities, to convict a person of these offences they must be shown to have intended to cultivate not less than the specified quantity (R v Bui [2005] VSCA 300; R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Garlick [2006] VSCA 127); R v Garlick (No.2) [2007] VSCA 23; R v Filipovic [2008] VSCA 14; R v Page [2008] VSCA 54; Brooks v R [2010] VSCA 322).

39. The prosecution does not need to prove that the accused intended to cultivate a commercial or large commercial quantity of a narcotic

5 plant. They need only prove that the accused intended to cultivate a commercial or large commercial quantity of the plant in issue.

40. It is not sufficient for the prosecution to prove that the accused intended to cultivate plants, and those plants in fact weighed the specified amount, or that the accused intended to cultivate plants which “might approximate” the specified quantity. The intention must be to cultivate at least the specified quantity (R v Garlick (No.2) [2007] VSCA 23; R v McKittrick [2008] VSCA 69).

41. This does not mean that the accused must have known what the legal threshold was, or what the actual weight or number of the plants cultivated was. The question is whether the accused intended to cultivate a weight or number of plants that was at least the weight or number specified in Schedule Eleven of the Drugs Act (R v Garlick (No.2) [2007] VSCA 23; Brooks v R [2010] VSCA 322).

42. Although this intention may be proved by an admission of the accused, in most cases it will be necessary to infer the requisite intention from the performance of the proscribed act and the circumstances in which it was performed (Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523; R v Bui [2005] VSCA 300; R v Garlick [2006] VSCA 127; R v Page [2008] VSCA 54).

43. It will usually be possible to infer an intention to cultivate a commercial or large commercial quantity of plants if it can be established that the accused knew that that quantity of plants was being cultivated (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523).

44. However, the prosecution does not need to prove knowledge of the exact quantity of plants cultivated. It is possible that the requisite intent could instead be inferred from a lesser state of mind, such as:

 A belief that that quantity was being cultivated (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R (1987) 162 CLR 502); or

 An awareness of the likelihood that that quantity was being cultivated (i.e. an awareness that there was a significant or real chance that they were cultivating the specified quantity of plants) (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R (1987) 162 CLR 502; R v Filipovic [2008] VSCA 14; R v Page [2008] VSCA 54; Brooks v R [2010] VSCA 322).

45. In some cases, it may also be possible to infer an intention to cultivate a specified quantity from the fact that:

 The circumstances were such that the accused’s suspicions that the specified quantity of plants was being cultivated would have been aroused; and

6  The accused deliberately failed to make inquiries about the quantity being cultivated, for fear of learning the truth (R v Garlick (No.2) [2007] VSCA 23. See also He Kaw Teh v R (1985) 157 CLR 523; Bahri Kural v R (1987) 162 CLR 502; R v Crabbe (1985) 156 CLR 464).

46. However, such cases of “wilful blindness” will be rare, and judges should be cautious before charging the jury about this possibility. There must be evidence that the accused realised there was a risk that s/he was cultivating more than the relevant threshold, and deliberately chose to close his or her eyes to that risk so that s/he could later deny knowledge and avoid liability. In the absence of such evidence, it will be a misdirection to direct the jury about wilful blindness (R v Garlick (No.2) [2007] VSCA 23).

47. It may be possible for the jury to infer the requisite state of mind from proof that the accused cultivated the required quantity of plants. However, this will not always be the case (He Kaw Teh v R (1985) 157 CLR 523).

48. While the states of mind outlined above (other than wilful blindness) will usually support an inference of the requisite intention, this will not always be the case. A judge should therefore not instruct the jury that they may convict simply because, for example, the prosecution established that the accused was aware that there was a significant or real chance that they had cultivated the requisite quantity (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Garlick [2006] VSCA 127; R v Reed [2008] VSCA 20; R v Page [2008] VSCA 54).

49. The jury should instead be directed that proof that the accused was aware of the likelihood that they were cultivating the requisite quantity of plants is capable of sustaining the inference that the accused intended to cultivate that quantity. At the same time, the judge should make clear to the jury that it is for them to determine whether that inference should be drawn, based on all of the facts and circumstances (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Garlick [2006] VSCA 127; R v Reed [2008] VSCA 20; R v Page [2008] VSCA 54).

50. In charging the jury on this issue, judges should follow as nearly as possible the language used in R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299. In particular, care must be taken to ensure that the phrase “is capable of sustaining the inference” is used whenever reference is made in this context to proof of belief “in a significant or real chance” (R v Page [2008] VSCA 540).

51. The jury must be instructed that an inference is not to be drawn unless they are satisfied that it is the only inference that is reasonably open in the circumstances of the case (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA 540).

7 52. Where intention is to be proved by inference, the judge should direct the jury as to any evidence capable of sustaining that inference (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Page [2008] VSCA 540).

53. A judge should not attempt to explain the meaning of the expression “significant or real chance”, other than to tell the jury that the words have their ordinary meaning and that it is a question for them to decide (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299).

54. Even though the issue of intent may not be a live issue in a trial, and may not have been raised by the defence, as it is an element of the offence a judge is required to direct the jury about it, unless the defence has conceded that a direction is not required (R v Bui [2005] VSCA 300).

Defences, Exceptions and Mitigating Circumstances

Authorisation and Licensing

55. Each of the cultivation offences specifies that a person will be guilty if they cultivate in the specified manner, “without being authorized by or licensed under this Act or the regulations to do so”.

56. It has been held that the question of authorisation or licensing is a matter of “exception” or “qualification” for the purposes of s104 of the Drugs Act. This section states that the burden of proving any “matter of exception qualification or defence” lies on the accused. It is therefore for the accused to prove, on the balance of probabilities, that they were appropriately authorised or licensed – rather than being for the prosecution to disprove beyond reasonable doubt (R v Ibrahim (1987) 27 A Crim R 460; Horman v Bingham [1972] VR 29).

57. Provisions concerning authorisation and licensing are contained in Divisions 2 and 4 of the Act respectively.

58. Sections 118 and 119 of the Act contain evidentiary provisions that may be of assistance in cases where there is a dispute about authorisation or licensing.

Knowledge of the Nature of the Plant

59. Under s72C of the Drugs Act, it will be a defence to a charge of cultivation under sections 72, 72A or 72B if the accused “adduces evidence which satisfies the court on the balance of probabilities that, having regard to all the circumstances (including his or her conduct)… he or she did not know or suspect and could not reasonably have been expected to have known or suspected that the narcotic plant was a narcotic plant”.

60. Due to this section, if the accused wishes to argue that they should

8 be found not guilty of cultivation because they did not know or suspect that they were cultivating a narcotic plant, it will be for them to prove to the jury. They will need to prove to the jury, on the balance of probabilities, that:

 They did not know or suspect that the plant they were cultivating was a narcotic plant; and

 They could not reasonably have been expected to have known or suspected that it was a narcotic plant.

Mitigating Circumstances

61. Section 72B provides for a lesser penalty where the trial judge (or magistrate) is satisfied that the offence was not committed for any purpose related to trafficking.

62. Prior to 1 January 2002, the legislation stated that the act of cultivation provided prima facie evidence of trafficking. This is no longer the case (see, e.g., R v Mason [2006] VSCA 55).

Trafficking, Cultivation and Possession

63. If the relevant acts of trafficking, cultivation and/or possession completely overlap, a conviction should only be recorded in relation to one of the offences (R v Langdon [2004] VSCA 205; R v Mason [2006] VSCA 55; R v Nguyen [2006] VSCA 158; R v Nunno [2008] VSCA 31; R v Filipovic [2008] VSCA 14).2 See Bench Notes: Trafficking for further information.

2 This may occur, for example, where the accused is charged with trafficking and cultivation, and the trafficking charge is based on the fact that the plants were in the accused’s possession for sale (see, e.g., R v Mason [2006] VSCA 55; R v Filipovic [2008] VSCA 14).