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

Sentencing Snapshot 197
Date of Publication: 
28 June 2016

Sentencing Snapshot no. 197 describes sentencing outcomes for the offence of cultivating a commercial quantity of narcotic plants in the County Court of Victoria between 2010–11 and 2014–15.

The most recent Sentencing Snapshot for this offence is Snapshot no. 222.

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 commercial quantity of narcotic plants in the County Court 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 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.

This report examines the offence of cultivating a commercial quantity of narcotic plants. The amount that constitutes a commercial quantity depends on the type of plant.[5] In relation to cannabis, which is the most common narcotic plant involved in these offences, a commercial quantity is 25 kg or 100 plants.[6] Different types of plants can also be combined in order to achieve a commercial quantity.[7]

Cultivation of a commercial quantity of a narcotic plant[8] is an indictable offence that carries a maximum penalty of 25 years’ imprisonment and/or a fine of up to 3,000 penalty units.[9] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court.

Cultivating a commercial quantity of narcotic plants was the principal offence[10] in 4.4% of cases sentenced in the higher courts between 2010–11 and 2014–15.

People sentenced

From 2010–11 to 2014–15, 414 people were sentenced in the higher courts for a principal offence of cultivating a commercial quantity of narcotic plants. 

Figure 1 shows the number of people sentenced for the principal offence of cultivating a commercial quantity of narcotic plants by financial year. There were 62 people sentenced for this offence in 2014–15, down by 27 people from the previous year.  The number of people sentenced was highest in 2012–13 (98 people).

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

Financial year Total
2010–11 83
2011–12 82
2012–13 98
2013–14 89
2014–15 62
Total 414

Sentence types and trends

Figure 2 shows the total number of people sentenced for cultivating a 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, 87% of people were given an immediate custodial sentence.  This peaked at 94% (92 of 98) in 2012–13 after a low of 81% (67 of 83) in 2010–11.  In 2014–15, 87% of people sentenced (54 of 62) were given an immediate custodial sentence.

Figure 2: The number of people sentenced for cultivating a 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 67 16 83
2011–12 68 14 82
2012–13 92 6 98
2013–14 80 9 89
2014–15 54 8 62
Total 361 53 414

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

Over the five-year period, the majority of the people sentenced for cultivating a commercial quantity of narcotic plants received a period of imprisonment (65% or 271 of 414 people), while 17% received a partially suspended sentence of imprisonment and 11% received a wholly suspended sentence of imprisonment.

The percentage and number of people receiving imprisonment for cultivating a commercial quantity of narcotic plants peaked at 77% (75 of 98 people) in 2012–13. The percentage of people receiving imprisonment for cultivating a commercial quantity of narcotic plants was lowest in 2010–11 (49% or 41 of 83 people), while the number of people receiving imprisonment was lowest in 2014–15 (60% or 37 of 62 people).

Table 1: The number and percentage of people sentenced for cultivating a 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 41 (49%) 55 (67%) 75 (77%) 63 (71%) 37 (60%) 271 (65%)
Partially suspended sentence 26 (31%) 12 (15%) 17 (17%) 14 (16%) 2 (3%) 71 (17%)
Wholly suspended sentence 16 (19%) 13 (16%) 5 (5%) 7 (8%) 4 (6%) 45 (11%)
Mix (imprisonment and community correction order) 0 (–) 0 (–) 0 (–) 1 (1%) 8 (13%) 9 (2%)
Community correction order 0 (–) 0 (–) 1 (1%) 1 (1%) 3 (5%) 5 (1%)
Aggregate imprisonment 0 (–) 0 (–) 0 (–) 1 (1%) 3 (5%) 4 (<1%)
Mix (aggregate imprisonment and community correction order) 0 (–) 0 (–) 0 (–) 0 (–) 2 (3%) 2 (<1%)
Youth justice centre order 0 (–) 1 (1%) 0 (–) 0 (–) 1 (2%) 2 (<1%)
Mix (imprisonment and community-based order) 0 (–) 0 (–) 0 (–) 0 (–) 1 (2%) 1 (<1%)
Aggregate partially suspended sentence 0 (–) 0 (–) 0 (–) 1 (1%) 0 (–) 1 (<1%)
Aggregate wholly suspended sentence 0 (–) 0 (–) 0 (–) 1 (1%) 0 (–) 1 (<1%)
Mix (wholly suspended sentence and fine) 0 (–) 1 (1%) 0 (–) 0 (–) 0 (–) 1 (<1%)
Aggregate fine 0 (–) 0 (–) 0 (–) 0 (–) 1 (2%) 1 (<1%)
People sentenced 83 82 98 89 62 414

Age and gender of people sentenced

Data on the age and gender of people sentenced for cultivating a 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 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 commercial quantity of narcotic plants from 2010–11 to 2014–15.

Principal sentence of imprisonment

A total of 287 people (69%) received a principal sentence of imprisonment for cultivating a 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 2 months (combined with a community correction order) to 5 years and 3 months, while the median length of imprisonment was 2 years (meaning that half of the imprisonment terms were shorter than 2 years and half were longer).

The most common length of imprisonment imposed was 2 to less than 3 years (130 people).

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

Imprisonment length Number of people
Less than 1 year 18
1 to less than 2 years 73
2 to less than 3 years 130
3 to less than 4 years 45
4 to less than 5 years 11
5 to less than 6 years 4
People sentenced 281

As shown in Figure 4, the average length of imprisonment term imposed on people sentenced for cultivating a commercial quantity of narcotic plants ranged from 1 year and 9 months in 2014–15 to 2 years and 4 months in 2011–12 and 2012–13.

Figure 4: The average length of imprisonment term imposed on people sentenced for cultivating a commercial quantity of narcotic plants, 2010–11 to 2014–15

Financial year Average length of imprisonment term
2010–11 (n = 41) 2 years, 2 months
2011–12 (n = 55) 2 years, 4 months
2012–13 (n = 75) 2 years, 4 months
2013–14 (n = 64) 2 years, 2 months
2014–15 (n = 46) 1 year, 9 months

Other offences finalised at the same hearing

Often people prosecuted for cultivating a 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 commercial quantity of narcotic plants.

Figure 5 shows the number of people sentenced for the principal offence of cultivating a 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 13, while the median was 2 offences.  There were 169 people (40.8%) sentenced for the single offence of cultivating a commercial quantity of narcotic plants. The average number of offences per person sentenced for cultivating a commercial quantity of narcotic plants was 2.15.

Figure 5: The number of people sentenced for the principal offence of cultivating a commercial quantity of narcotic plants by the number of sentenced offences per person, 2010–11 to 2014–15

Number of offences Number of people
1 169
2 151
3 43
4 22
5–9 26
10+ 3
Total 414

While Figure 5 presents the number of sentenced offences for those sentenced for cultivating a 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, 178 of the total 414 people (43.0%) also received sentences for theft.  On average, they were sentenced for 1.14 counts of theft.

Table 2: The number and percentage of people sentenced for the principal offence of cultivating a 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 commercial quantity of a narcotic plant 414 100.0 1.06
2. Theft 178 43.0 1.14
3. Dealing with property suspected of being proceeds of crime 43 10.4 1.14
4. Possess a drug of dependence 34 8.2 1.24
5. Trafficking in a non-commercial quantity of a drug of dependence 26 6.3 1.12
6. Cultivate a non-commercial quantity of a narcotic plant 17 4.1 1.24
7. Use a drug of dependence 11 2.7 1.27
8. Intentionally destroy/damage property (criminal damage) 8 1.9 1.25
9. Possess, use or carry a prohibited weapon (other than an imitation firearm) (section 5AA of Control of Weapons Act 1990 (Vic) 4 1.0 1.50
10. Possess prohibited weapon without exemption or approval (Control of Weapons Act 1990 (Vic) – repealed) 4 1.0 1.50
People sentenced 414 100.0 2.15

Total effective sentence of imprisonment

Figure 6 shows the number of people sentenced to imprisonment for cultivating a 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 2 months (combined with a community correction order) to 6 years and 9 months, while the median total effective length of imprisonment was 2 years and 2 months (meaning that half of the total effective sentence lengths were below 2 years and 2 months and half were above).

The most common total effective imprisonment length was 2 to less than 3 years (123 people).

Figure 6: The number of people sentenced to imprisonment for cultivating a 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 20
1 to less than 2 years 65
2 to less than 3 years 123
3 to less than 4 years 53
4 to less than 5 years 14
5 to less than 6 years 10
6 to less than 7 years 2
People sentenced 287

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 commercial quantity of narcotic plants.  Sentences and non-parole periods must be considered in this broader context.

Of the 287 people who were sentenced to imprisonment for cultivating a commercial quantity of narcotic plants, 267 were eligible to have a non-parole period fixed. [15]  Of these people, 257 were given a non-parole period (96%).[16]  Figure 7 shows the number of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants between 2010–11 and 2014–15 by length of non-parole period.  Non-parole periods ranged from 6 months to 4 years and 9 months, while the median length of the non-parole period was 1 year and 3 months (meaning that half of the non-parole periods were below 1 year and 3 months and half were above). 

The most common non-parole period imposed was 1 to less than 2 years (131 people).

Figure 7: The number of people sentenced to imprisonment for cultivating a 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 68
1 to less than 2 years 131
2 to less than 3 years 48
3 to less than 4 years 8
4 to less than 5 years 2
No non-parole period 28

Total effective sentences of imprisonment and non-parole periods

Figure 8 presents the average length of total effective sentences of imprisonment compared with the average length of non-parole periods from 2010–11 to 2014–15.

From 2010–11 to 2014–15, the average length of total effective sentences for all people ranged from 1 year and 10 months in 2014–15 to 2 years and 7 months in 2011–12.  Over the same period, the average length of non-parole periods ranged from 1 year and 3 months in 2013–14 and 2014–15 to 1 year and 5 months in 2011–12 and 2012–13.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants, 2010–11 to 2014–15

Financial year Average total effective length Average non-parole period
2010–11 2 years, 5 months 1 year, 4 months
2011–12 2 years, 7 months 1 year, 5 months
2012–13 2 years, 6 months 1 year, 5 months
2013–14 2 years, 3 months 1 year, 3 months
2014–15 1 year, 10 months 1 year, 3 months

Total effective sentence of imprisonment by non-parole period

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

Summary

Between 2010–11 and 2014–15, 414 people were sentenced for cultivating a commercial quantity of narcotic plants in the higher courts.  Of these people, 287 (69%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of cultivating a 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 2 years and 2 months while the median principal imprisonment length was 2 years.

Total effective imprisonment lengths ranged from 2 months (combined with a community correction order) to 6 years and 9 months, and non-parole periods (where imposed) ranged from 6 months to 4 years and 9 months.

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. 165, which describes sentencing trends for cultivating a 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 70.

[6] Drugs, Poisons and Controlled Substances Act 1981 (Vic) sch 11 pt 2.

[7] See ‘aggregate commercial quantity’: Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.

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

[9] 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).

[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, mix (imprisonment and community correction order), aggregate imprisonment, mix (aggregate imprisonment and community correction order), mix (imprisonment and community-based order), youth justice centre order, and aggregate partially suspended sentence.

[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), mix (imprisonment and community-based order), aggregate imprisonment, and mix (aggregate imprisonment and community correction order).

[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 commercial quantity of narcotic plants. During the 2010–11 to 2014–15 period, 6 people received an aggregate form of imprisonment.

[15] A total of 20 people were not eligible for parole because they were given a total effective sentence length of less than one year.

[16] Two people were not given a non-parole period relating to that case alone, but a non-parole period that also related to other cases.  It is not possible to determine the length of the non-parole period that relates to these cases.  The non-parole periods for these people are excluded from the analysis.  A non-parole period was not set for 8 people who were eligible for a non-parole period.