Drug manufacturing and cultivation matters can range from allegations involving a small number of cannabis plants through to sophisticated commercial operations involving substantial quantities of prohibited drugs.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing drug manufacturing and cultivation charges throughout Sydney and New South Wales. We carefully examine the Prosecution evidence, the alleged quantity and purpose of the drugs, and the circumstances surrounding the alleged offending.

What is Drug Manufacturing?

Drug manufacturing offences are principally contained in section 24 of the Drug Misuse and Trafficking Act 1985 (NSW).

It is an offence to manufacture a prohibited drug.

Manufacturing can involve producing a prohibited drug through a chemical or other process and may include allegations involving:

• manufacturing a prohibited drug;
• operating premises used to manufacture drugs;
• possessing equipment or substances used in manufacture; or
• participating in a larger manufacturing operation.

The applicable offence and penalty depend upon the type and quantity of drug involved.

What is Drug Cultivation?

Cultivation offences are principally contained in section 23 of the Drug Misuse and Trafficking Act 1985 (NSW).

The legislation makes it an offence to cultivate a prohibited plant.

Cultivation may include:

• planting prohibited plants;
• growing or tending plants;
• maintaining a growing operation; or
• harvesting prohibited plants.

Cannabis cultivation is subject to specific provisions concerning the number of plants and whether the cultivation is alleged to be commercial.

Commercial Cultivation

The legislation distinguishes between ordinary cultivation and commercial cultivation.

Commercial cultivation may arise where:

• the number of prohibited plants reaches the applicable commercial quantity; or
• the number of plants is below the commercial quantity but meets the statutory threshold and the plants or their products are intended for sale.

The alleged intention to sell can therefore be an important issue in a cultivation Prosecution.

Elements of Drug Manufacturing

To establish a manufacturing offence, the Prosecution must prove the relevant elements beyond reasonable doubt.

Depending upon the particular charge, this may require the Prosecution to establish:

1. that a prohibited drug was manufactured;
2. that the accused participated in the manufacturing process; and
3. that the relevant statutory fault elements are established.

The Prosecution may rely upon drugs, chemicals, equipment, communications, forensic evidence and evidence concerning the premises.

Elements of Drug Cultivation

The Prosecution must establish beyond reasonable doubt that:

1. prohibited plants were cultivated; and
2. the accused participated in the cultivation.

Evidence may include photographs, the plants themselves, forensic evidence, surveillance, admissions and evidence concerning ownership or occupation of the premises.

Simply being present at a property where prohibited plants are discovered does not necessarily establish criminal responsibility.

What Are the Penalties for Drug Manufacturing and Cultivation?

The applicable penalty depends upon the particular offence, drug and quantity.

Under section 32 of the Drug Misuse and Trafficking Act 1985, certain indictable drug manufacturing and cultivation offences carry a maximum penalty of:

15 years' imprisonment and/or 2,000 penalty units

For relevant offences involving cannabis plant or cannabis leaf, the maximum is:

10 years' imprisonment and/or 2,000 penalty units.

More serious penalties apply where a commercial quantity or commercial cultivation is involved.

Under section 33, the maximum penalty for relevant commercial offences is:

• 20 years' imprisonment and/or 3,500 penalty units for most prohibited drugs; or
• 15 years' imprisonment and/or 3,500 penalty units for cannabis plant or cannabis leaf.

For offences involving at least the applicable large commercial quantity, the maximum penalty is:

• life imprisonment and/or 5,000 penalty units for most prohibited drugs; or
• 20 years' imprisonment and/or 5,000 penalty units for cannabis plant or cannabis leaf.

Drug Manufacturing & Cultivation Penalties at a Glance

These are maximum penalties, not automatic sentences. The actual sentence depends upon the circumstances of the offending and the offender.

Drug Quantity

The quantity of the drug or number of plants can significantly affect the charge and potential penalty.

The applicable thresholds vary between different prohibited drugs and can determine whether the Prosecution alleges:

• ordinary manufacturing or cultivation;
• commercial manufacturing or cultivation; or
• large-scale commercial offending.

The precise quantity should therefore be carefully examined, particularly where the Prosecution relies upon forensic analysis.

Cannabis Cultivation

Cannabis cultivation is subject to specific statutory provisions.

The number of plants may affect the applicable offence, while evidence of an intention to sell may result in more serious commercial cultivation allegations.

In larger operations, police may rely upon evidence including:

• hydroponic equipment;
• lighting and ventilation systems;
• irrigation equipment;
• growing rooms;
• fertilisers;
• scales and packaging; and
• financial or electronic records.

The presence of such equipment does not, by itself, establish that every person connected with the premises was responsible for the cultivation.

Drug Manufacturing Premises

Police investigations may involve allegations that a residential or commercial premises was used for drug manufacturing or commercial cultivation.

Evidence may include:

• prohibited drugs or plants;
• manufacturing or growing equipment;
• chemicals;
• mobile phones and computers;
• financial records;
• fingerprints or DNA;
• surveillance; and
• admissions.

The circumstances in which evidence was obtained should also be examined, including any issues concerning search warrants or the admissibility of evidence.

Can I Be Charged if the Drugs Were Not Mine?

Yes. A person can face Prosecution based upon allegations that they participated in manufacturing or cultivation even where the drugs or plants were not physically found on them.

For example, police may allege that the accused exercised control over a property, room, growing equipment or manufacturing equipment.

However, ownership or occupation of a property does not automatically establish criminal responsibility. The Prosecution must establish the accused person's involvement in the particular offence charged.

Defending Drug Manufacturing or Cultivation Charges

Being charged does not mean that you are guilty. The Prosecution bears the burden of proving the relevant offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not manufacture the drug;
• the accused did not cultivate the plants;
• the accused was unaware of the drugs or plants;
• another person was responsible for the operation;
• the accused did not control the relevant premises;
• the Prosecution cannot establish the accused's participation;
• the substance or plant is not prohibited;
• the quantity has been incorrectly calculated;
• the Prosecution cannot establish commercial cultivation;
• the Prosecution cannot establish an intention to sell;
• forensic evidence is unreliable; or
• evidence obtained during a search should be challenged.

The appropriate defence depends upon the evidence and circumstances of the individual matter.

Sentencing for Drug Manufacturing and Cultivation

When determining sentence, the court may consider:

• the type and quantity of drug;
• the number of plants;
• the scale and sophistication of the operation;
• whether the offending was commercial;
• the accused person's role and level of knowledge;
• the duration of the offending;
• financial motivation;
• the accused person's criminal history;
• prospects of rehabilitation;
• remorse and personal circumstances; and
• whether an early guilty plea was entered.

The court will consider both the objective seriousness of the offending and the subjective circumstances of the offender.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice about your charges;
• detailed analysis of the Prosecution evidence;
• advice concerning drug quantity and classification;
• examination of forensic evidence;
• assessment of alleged commercial cultivation;
• analysis of your alleged role;
• advice concerning potential defences;
• advice concerning search and seizure issues;
• representation at court;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

Our approach is built on thorough preparation, practical advice and strong courtroom advocacy.