Sentencing Trends for Cultivating a Non-Commercial Quantity of Narcotic Plants in the Higher Courts of Victoria 2010–11 to 2014–15

Sentencing Snapshot 196
Date of Publication: 
28 June 2016

Sentencing Snapshot no. 196 describes sentencing outcomes for the offence of cultivating a non-commercial quantity of narcotic plants in the County and Supreme Courts of Victoria between 2010–11 and 2014–15.

The most recent Sentencing Snapshot for this offence is Snapshot no. 221.

You can also access statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© Copyright State of Victoria, Sentencing Advisory Council, 2016

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of cultivating a non-commercial quantity of narcotic plants in the County and Supreme Courts of Victoria between 2010–11 and 2014–15.[2] Adjustments made by the Court of Appeal to sentence or conviction as at June 2015 have been incorporated into the data in this Snapshot.

Detailed data on cultivating a non-commercial quantity of narcotic plants and other offences are available on SACStat – Higher Courts.

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides a set of offences in relation to the cultivation of a narcotic plant that distinguishes between large commercial, commercial, and less than commercial quantities of the illegal plant.[3]

A person who sows the seed of a narcotic plant or grows, tends, or nurtures a narcotic plant without being authorised or licensed to do so is guilty of cultivation of a narcotic plant.[4] The maximum penalties that apply vary depending on the quantity of the plant involved, as well as the purpose for which the plant was cultivated.

Cultivation of a narcotic plant in a non-commercial quantity[5] is an indictable offence that carries a maximum penalty of 15 years’ imprisonment and/or a fine of up to 1,800 penalty units.[6] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Cultivating a non-commercial quantity of narcotic plants can also be heard summarily in the Magistrates’ Court provided that the offending involves a quantity of plants below a certain amount,[7] the Magistrates’ Court considers it appropriate, and the defendant consents.[8]

In cases where the judge (or magistrate on a summary hearing) is satisfied on the balance of probabilities that the plant was not cultivated for any purpose related to trafficking, the maximum penalty is reduced to 1 year’s imprisonment or 20 penalty units.[9]

Cultivating a non-commercial quantity of narcotic plants was the principal offence[10] in 1.4% of cases sentenced in the higher courts between 2010–11 and 2014–15.

People sentenced

From 2010–11 to 2014–15, 136 people were sentenced in the higher courts for a principal offence of cultivating a non-commercial quantity of narcotic plants.

Figure 1 shows the number of people sentenced for the principal offence of cultivating a non-commercial quantity of narcotic plants by financial year. There were 22 people sentenced for this offence in 2014–15, down by 1 person from the previous year.  The number of people sentenced was highest in 2010–11 (35 people).

Figure 1: The number of people sentenced for cultivating a non-commercial quantity of narcotic plants by financial year, 2010–11 to 2014–15

Financial year Total
2010–11 35
2011–12 29
2012–13 27
2013–14 23
2014–15 22
Total 136

Sentence types and trends

Figure 2 shows the total number of people sentenced for cultivating a non-commercial quantity of narcotic plants and the number that received an immediate custodial sentence.  An immediate custodial sentence is one that involves at least some element of immediate (as opposed to wholly suspended) imprisonment or detention.[11]  Over the five-year period, 46% of people were given an immediate custodial sentence.  This peaked at 59% in 2012–13 and 2014–15 after a low of 23% (8 of 35) in 2010–11.

Figure 2: The number of people sentenced for cultivating a non-commercial quantity of narcotic plants and the number that received an immediate custodial sentence, 2010–11 to 2014–15

Financial year Custodial Non-Custodial Total
2010–11 8 27 35
2011–12 12 17 29
2012–13 16 11 27
2013–14 13 10 23
2014–15 13 9 22
Total 62 74 136

Table 1 shows the number of people sentenced for cultivating a non-commercial quantity of narcotic plants from 2010–11 to 2014–15 by the types of sentences imposed.

Over the five-year period, around one in four people sentenced for cultivating a non-commercial quantity of narcotic plants received a period of imprisonment (28% or 38 of 136 people), while 27% received a wholly suspended sentence of imprisonment, 15% received a partially suspended sentence of imprisonment, and 11% received a community correction order.

The percentage and number of people receiving imprisonment for cultivating a non-commercial quantity of narcotic plants peaked at 43% (10 of 23 people) in 2013–14. The percentage and number of people receiving imprisonment for cultivating a non-commercial quantity of narcotic plants were lowest in 2010–11 (11% or 4 of 35 people).

The percentage and number of people receiving a wholly suspended sentence for cultivating a non-commercial quantity of narcotic plants peaked at 51% (18 of 35 people) in 2010–11, decreasing to 13% (3 of 23 people) in 2013–14, with no persons receiving this sentence in 2014–15.

Table 1: The number and percentage of people sentenced for cultivating a non-commercial quantity of narcotic plants by sentence type, 2010–11 to 2014–15

Sentence type 2010–11 2011–12 2012–13 2013–14 2014–15 Total
Imprisonment 4 (11%) 5 (17%) 10 (37%) 10 (43%) 9 (41%) 38 (28%)
Wholly suspended sentence 18 (51%) 10 (34%) 6 (22%) 3 (13%) 0 (–) 37 (27%)
Partially suspended sentence 4 (11%) 7 (24%) 6 (22%) 2 (9%) 1 (5%) 20 (15%)
Community correction order 0 (–) 1 (3%) 3 (11%) 3 (13%) 8 (36%) 15 (11%)
Fine 4 (11%) 1 (3%) 0 (–) 1 (4%) 1 (5%) 7 (5%)
Community-based order 4 (11%) 1 (3%) 0 (–) 0 (–) 0 (–) 5 (4%)
Adjourned undertaking with conviction 1 (3%) 0 (–) 0 (–) 2 (9%) 0 (–) 3 (2%)
Aggregate imprisonment 0 (–) 0 (–) 0 (–) 0 (–) 2 (9%) 2 (1%)
Mix (imprisonment and community correction order) 0 (–) 0 (–) 0 (–) 1 (4%) 1 (5%) 2 (1%)
Intensive correction order 0 (–) 2 (7%) 0 (–) 0 (–) 0 (–) 2 (1%)
Adjourned undertaking without conviction 0 (–) 1 (3%) 1 (4%) 0 (–) 0 (–) 2 (1%)
Aggregate wholly suspended sentence 0 (–) 0 (–) 1 (4%) 0 (–) 0 (–) 1 (<1%)
Mix (intensive correction order and fine) 0 (–) 1 (3%) 0 (–) 0 (–) 0 (–) 1 (<1%)
Aggregate fine 0 (–) 0 (–) 0 (–) 1 (4%) 0 (–) 1 (<1%)

People sentenced

35

29

27

23

22

136

Age and gender of people sentenced

Data on the age and gender of people sentenced for cultivating a non-commercial quantity of narcotic plants are available on SACStat – Higher Courts.

Principal and total effective sentences

Two methods for describing sentence types and lengths are examined in this section. One relates to the principal sentence and examines sentences for the offence at a charge level. The other relates to the total effective sentence and examines sentences for the offence at a case level.

The principal sentence is the individual sentence imposed for the charge that is the principal offence.[12]

The total effective sentence in a case with a single charge is the principal sentence. The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other).

In many cases, the total effective sentence imposed on a person will be longer than the principal sentence. Principal sentences for cultivating a non-commercial quantity of narcotic plants must be considered in this broader context. The following sections analyse the use of imprisonment for the offence of cultivating a non-commercial quantity of narcotic plants from 2010–11 to 2014–15.

Principal sentence of imprisonment

A total of 42 people (31%) received a principal sentence of imprisonment for cultivating a non-commercial quantity of narcotic plants between 2010–11 and 2014–15.[13]

Figure 3 shows these people by the length of their imprisonment term.[14]  Imprisonment terms ranged from 1 month and 18 days to 4 years, while the median length of imprisonment was 1 year, 2 months and 9 days (meaning that half of the imprisonment terms were shorter than 1 year, 2 months and 9 days and half were longer).

The most common length of imprisonment imposed was 1 to less than 2 years (17 people).

The average length of imprisonment term by financial year is not displayed due to low numbers of people.

Figure 3: The number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants by length of imprisonment term, 2010–11 to 2014–15

Imprisonment length Number of people
Less than 1 year 12
1 to less than 2 years 17
2 to less than 3 years 9
3 to less than 4 years 1
4 to less than 5 years 1
People sentenced 40

Other offences finalised at the same hearing

Often people prosecuted for cultivating a non-commercial quantity of narcotic plants face multiple charges, which are finalised at the same hearing.  This section looks at the range of offences for which offenders have been sentenced at the same time as being sentenced for the principal offence of cultivating a non-commercial quantity of narcotic plants.

Figure 4 shows the number of people sentenced for the principal offence of cultivating a non-commercial quantity of narcotic plants by the total number of offences for which sentences were set.  The number of sentenced offences per person ranged from 1 to 16, while the median was 2 offences.  There were 41 people (30.1%) sentenced for the single offence of cultivating a non-commercial quantity of narcotic plants.  The average number of offences per person sentenced for cultivating a non-commercial quantity of narcotic plants was 2.63.

Figure 4: The number of people sentenced for the principal offence of cultivating a non-commercial quantity of narcotic plants by the number of sentenced offences per person, 2010–11 to 2014–15

Number of offences Number of people
1 41
2 54
3 16
4 8
5–9 15
10+ 2
Total 136

While Figure 4 presents the number of sentenced offences for those sentenced for cultivating a non-commercial quantity of narcotic plants, Table 2 shows what the accompanying offences were.  It shows the number and percentage of people sentenced for the 10 most common offences.  The last column sets out the average number of offences sentenced per person.  For example, 50 of the total 136 people (36.8%) also received sentences for theft.  On average, they were sentenced for 1.50 counts of theft.

Table 2: The number and percentage of people sentenced for the principal offence of cultivating a non-commercial quantity of narcotic plants by the most common offences that were sentenced and the average number of those offences that were sentenced, 2010–11 to 2014–15

Offence Number of cases Percentage of cases Average number of offences per case
1. Cultivate a non-commercial quantity of a narcotic plant 136 100.0 1.23
2. Theft 50 36.8 1.50
3. Possess a drug of dependence 23 16.9 1.22
4. Trafficking in a non-commercial quantity of a drug of dependence 11 8.1 1.27
5. Dealing with property suspected of being proceeds of crime 11 8.1 1.09
6. Resist/hinder/delay/obstruct police 5 3.7 1.00
7. Use a drug of dependence 4 2.9 1.25
8. Handling stolen goods 2 1.5 2.50
9. Possess equipment, material, or substance to manufacture a drug of dependence 2 1.5 1.00
10. Possess prohibited weapon without exemption or approval 2 1.5 1.00
People sentenced 136 100.0 2.63

Total effective sentence of imprisonment

Figure 5 shows the number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants between 2010–11 and 2014–15 by length of total effective sentence.  The length of total effective sentences ranged from 1 month and 18 days to 6 years, while the median total effective length of imprisonment was 1 year and 3 months (meaning that half of the total effective sentence lengths were below 1 year and 3 months and half were above).

The most common total effective imprisonment length was 1 to less than 2 years (15 people).

Figure 5: The number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants by length of total effective imprisonment term, 2010–11 to 2014–15

Total effective imprisonment length Number of people
Less than 1 year 13
1 to less than 2 years 15
2 to less than 3 years 8
3 to less than 4 years 3
4 to less than 5 years 2
5 to less than 6 years 0
6 to less than 7 years 1
People sentenced 42

Non-parole period

When a person is sentenced to a term of immediate imprisonment of one year or more, the court has the discretion to fix a non-parole period.  Where a non-parole period is fixed, the person must serve that period before becoming eligible for parole.  Where no non-parole period is set by the court, the person must serve the entirety of the imprisonment term.

Under section 11(4) of the Sentencing Act 1991 (Vic), if a court sentences an offender to imprisonment in respect of more than one offence, the non-parole period set by the court must be in respect of the total effective sentence of imprisonment that the offender is liable to serve under all the sentences imposed.  In many cases, the non-parole period will be longer than the individual principal sentence for cultivating a non-commercial quantity of narcotic plants.  Sentences and non-parole periods must be considered in this broader context.

Of the 42 people who were sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants, 29 were eligible to have a non-parole period fixed.[15]  Of these people, 26 were given a non-parole period (90%).[16]  Figure 6 shows the number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants between 2010–11 and 2014–15 by length of non-parole period.  Non-parole periods ranged from 5 months to 4 years, while the median length of the non-parole period was 1 year (meaning that half of the non-parole periods were below 1 year and half were above). 

The majority of people did not receive a minimum non-parole period (16 people).

Figure 6: The number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants by length of non-parole period, 2010–11 to 2014–15

Non-parole period Number of people
Less than 1 year 11
1 to less than 2 years 12
2 to less than 3 years 1
3 to less than 4 years 1
4 to less than 5 years 1
No non-parole period 16

Total effective sentences of imprisonment and non-parole periods

The average length of total effective sentences of imprisonment and non-parole periods by financial year is not displayed due to low numbers of people.

Total effective sentence of imprisonment by non-parole period

Data on the total effective sentence of imprisonment by non-parole period for cultivating a non-commercial quantity of narcotic plants are available on SACStat – Higher Courts.

Non-imprisonment sentences

Data on the length of non-imprisonment sentence types – such as community correction orders, suspended sentences, and fines – for cultivating a non-commercial quantity of narcotic plants are available on SACStat – Higher Courts.

Summary

Between 2010–11 and 2014–15, 136 people were sentenced for cultivating a non-commercial quantity of narcotic plants in the higher courts.  Of these people, 42 (31%) were given a principal sentence of imprisonment and 27% received a wholly suspended sentence.

The number and range of offences for which people with a principal offence of cultivating a non-commercial quantity of narcotic plants were sentenced help explain why imprisonment sentence lengths were slightly longer for the total effective sentence than for the principal sentence. The median total effective imprisonment length was 1 year and 3 months while the median principal imprisonment length was 1 year, 2 months and 9 days.

Total effective imprisonment lengths ranged from 1 month and 18 days to 6 years, and non-parole periods (where imposed) ranged from 5 months to 4 years.

Endnotes

[1] This series of reports includes custodial and non-custodial supervision orders imposed under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) as sentencing orders and in the count of people sentenced.  These orders are not sentencing orders, as they are imposed in cases where the defendant is found to be unfit to stand trial or not guilty because of mental impairment. However, these orders are included in this report as they are an important form of disposition of criminal charges.

This Sentencing Snapshot is an update of Sentencing Snapshot no. 164, which describes sentencing trends for cultivating a non-commercial quantity of narcotic plants between 2008–09 and 2012–13.

[2] Data on first-instance sentence outcomes presented in this Snapshot were obtained from the Strategic Analysis and Review Team at Court Services Victoria. Data on appeal outcomes were collected by the Sentencing Advisory Council from the Australasian Legal Information Institute (external link opens in a new window), and also were provided by the Victorian Court of Appeal. The Sentencing Advisory Council regularly undertakes extensive quality control measures for current and historical data. While every effort is made to ensure that the data analysed in this report are accurate, the data are subject to revision.

The sentencing database used for this analysis was compiled using conviction returns.  Due to incomplete offence information regarding drug cultivation offences on the conviction returns, a further classification exercise was undertaken to determine the specific offence types.  This involved reading the sentencing remarks of the particular cases and determining if the quantity of the drug was non-commercial, commercial, or large commercial.  In total, there were 560 cases that had cultivation of narcotic plants (section 72, 72A, or 72B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)) as the principal proven offence over the five-year period from 2010–11 to 2014–15.  Sentencing remarks were located for 557 cases (99%).  The drug quantities for all these cases were checked and coded into the appropriate category.  The remaining cases had sentences that were all within the statutory maximum penalty for the offence and were therefore assumed to have been recorded correctly in the first instance.

[3] Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 72–72B.

[4] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.

[5] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72B.

[6] The value of a penalty unit changes each year and can be found in the Victorian Government Gazette and on the Victorian Legislation and Parliamentary Documents website (external link opens in a new window).

[7] Under Schedule 2(6) of the Criminal Procedure Act 2009 (Vic), offences of cultivating a narcotic plant can be tried summarily by the Magistrates’ Court provided that the quantity of plants is not considered to be commercial or large commercial.

[8] Criminal Procedure Act 2009 (Vic) s 29.

[9] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72B(a).

[10] If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.

[11] Immediate custodial sentence includes imprisonment, partially suspended sentence, aggregate imprisonment, and mix (imprisonment and community correction order).

[12] Refer to endnote 10.

[13] This total includes the people in Table 1 who received a sentence of imprisonment, mix (imprisonment and community correction order), and aggregate imprisonment.

[14] Data presented in this section do not include imprisonment lengths for people who received an aggregate sentence of imprisonment. Sentence lengths for aggregate sentences of imprisonment apply to the whole case, while Figure 3 only deals with sentences of imprisonment for the principal proven offence of cultivating a non-commercial quantity of narcotic plants. During the 2010–11 to 2014–15 period, 2 people received an aggregate form of imprisonment.

[15] A total of 13 people were not eligible for parole because they were given a total effective sentence length of less than one year.

[16] A non-parole period was not set for 3 people who were eligible for a non-parole period.