Sentencing Trends for Cultivating a Non-Commercial Quantity of Narcotic Plants in the Higher Courts of Victoria 2012–13 to 2016–17

Sentencing Snapshot 221
Date of Publication: 
30 August 2018

Sentencing Snapshot no. 221 describes sentencing outcomes for the offence of cultivating a non-commercial quantity of narcotic plants in the County Court of Victoria from 2012–13 to 2016–17.

This is the most recent Sentencing Snapshot for this offence.

You can also access statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2018

Introduction

This Sentencing Snapshot describes sentencing outcomes1 for the offence of cultivating a non-commercial quantity of narcotic plants in the County Court of Victoria from 2012–13 to 2016–17.2 Adjustments made by the Court of Appeal to sentence or conviction as at June 2017 have been incorporated into the data in this Snapshot.3

Detailed data on cultivating a non-commercial quantity of narcotic plants and other offences is available on Sentencing Advisory Council Statistics Online (SACStat).

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides for 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.4

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.5 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.6

Cultivation of a narcotic plant in a non-commercial quantity7 is an indictable offence that carries a maximum penalty of 15 years’ imprisonment and/or a fine of up to 1,800 penalty units.8 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,9 the Magistrates’ Court considers it appropriate and the accused consents.10

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.11

Cultivating a non-commercial quantity of narcotic plants was the principal offence12 in 1.3% of cases sentenced in the higher courts between 2012–13 to 2016–17.

People sentenced

From 2012–13 to 2016–17, 115 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 20 people sentenced for this offence in 2016–17, down by 2 people from the previous year. The number of people sentenced was highest in 2012–13 (28 people) and lowest in 2016–17 (20 people).

Figure 1: The number of people sentenced for cultivating a non-commercial quantity of narcotic plants by financial year, 2012–13 to 2016–17

Financial Year Total
2012-13 28
2013-14 23
2014-15 22
2015-16 22
2016-17 20
Total 115

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 receiving an immediate custodial sentence. An immediate custodial sentence is one that involves at least some element of immediate imprisonment or detention.13 Over the five-year period, 63% of people were given an immediate custodial sentence.

Figure 2: The number of people sentenced for cultivating a non-commercial quantity of narcotic plants and the number receiving an immediate custodial sentence, 2012–13 to 2016–17

Financial Year Custodial sentence Non-custodial Total
2012-13 17 11 28
2013-14 13 10 23
2014-15 13 9 22
2015-16 17 5 22
2016-17 13 7 20
Total 73 42 115

Table 1 shows the number of people sentenced for cultivating a non-commercial quantity of narcotic plants from 2012–13 to 2016–17 by the type of sentence imposed. The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished.14 Changes to community correction orders have also influenced sentencing trends over the five years covered by this Snapshot.15

Over the five-year period, the majority of people sentenced for cultivating a non-commercial quantity of narcotic plants received a sentence of imprisonment (40% or 46 of 115 people), and 19% received a community correction order.

A total of 63 people received a principal sentence of imprisonment for cultivating a non-commercial quantity of narcotic plants. The principal sentence is the sentence imposed for the charge that is the principal offence.16 This total includes people in Table 1 who received a sentence of imprisonment, imprisonment combined with a community correction order, aggregate imprisonment, and aggregate imprisonment combined with a community correction order. Of the total number of people receiving a principal sentence of imprisonment for cultivating a non-commercial quantity of narcotic plants, 73% (46 of 63 people) received imprisonment, 16% (10 of 63 people) received imprisonment combined with a community correction order, 8% (5 of 63 people) received aggregate imprisonment and 3% (2 of 63 people) received aggregate imprisonment combined with a community correction order.

The percentage of people receiving a principal sentence of imprisonment for cultivating a non-commercial quantity of narcotic plants increased over the five-year period, from 36% of overall sentences in 2012–13 to 65% of overall sentences in 2016–17. The percentage of imprisonment was greatest during 2015–16 (77%) which was also the year with the highest number of imprisonment sentences combined with a community correction order (8 cases).

Over the five-year period, 22 people received a community correction order as their principal sentence. The percentage of people receiving a community correction order was lowest during 2012–13 (11%) and highest during 2014–15 (36%).

Table 1: The number and percentage of people sentenced for cultivating a non-commercial quantity of narcotic plants by sentence type, 2012–13 to 2016–17 (in descending order of numbers for 2016–17)

Sentence type 2012–13 2013–14 2014–15 2015–16 2016–17 Total
Imprisonment 10 (36%) 10 (43%) 9 (41%) 7 (32%) 10 (50%) 46 (40%)
Community correction order 3 (11%) 3 (13%) 8 (36%) 3 (14%) 5 (25%) 22 (19%)
Fine 0 (–) 1 (4%) 1 (5%) 2 (9%) 2 (10%) 6 (5%)
Imprisonment and community correction order (combined) 0 (–) 1 (4%) 1 (5%) 7 (32%) 1 (5%) 10 (9%)
Aggregate imprisonment 0 (–) 0 (–) 2 (9%) 2 (9%) 1 (5%) 5 (4%)
Aggregate imprisonment and community correction order (combined) 0 (–) 0 (–) 0 (–) 1 (5%) 1 (5%) 2 (2%)
Partially suspended sentence 7 (25%) 2 (9%) 1 (5%) 0 (–) 0 (–) 10 (9%)
Wholly suspended sentence 6 (21%) 3 (13%) 0 (–) 0 (–) 0 (–) 9 (8%)
Adjourned undertaking with conviction 0 (–) 2 (9%) 0 (–) 0 (–) 0 (–) 2 (2%)
Aggregate wholly suspended sentence 1 (4%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (<1%)
Aggregate fine 0 (–) 1 (4%) 0 (–) 0 (–) 0 (–) 1 (<1%)
Adjourned undertaking without conviction 1 (4%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (<1%)
People sentenced 28 23 22 22 20 115

Age and gender of people sentenced

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

Sentence length

Two methods for describing sentence 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 described above).

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).

Where a case involves multiple charges, the total effective sentence imposed on a person is often 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 2012–13 to 2016–17.

Principal sentence of imprisonment

Of the 63 people who received a principal sentence of imprisonment for cultivating a non-commercial quantity of narcotic plants, 56 people received a non-aggregate term of imprisonment. Ten of these people received a community correction order in addition to their non-aggregate term of imprisonment.

Figure 3 shows the length of imprisonment for the people receiving a non-aggregate term.17 Imprisonment terms ranged from 13 days (combined with a community correction order) to 4 years, while the median length of imprisonment was 1 year (meaning that half of the imprisonment terms were shorter than 1 year and half were longer).

The most common length of imprisonment imposed was less than 1 year (27 people).

Figure 3: The number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants by length of imprisonment term, 2012–13 to 2016–17

Imprisonment length Number of people
Less than 1 year 27
1 to less than 2 years 20
2 to less than 3 years 8
3 to less than 4 years 0
4 to less than 5 years 1
People sentenced 56

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for cultivating a non-commercial quantity of narcotic plants ranged from 8 months in 2015–16 to 1 year and 5 months in 2013–14.

Figure 4: The average (mean) length of imprisonment imposed on people sentenced for cultivating a non-commercial quantity of narcotic plants, 2012–13 to 2016–17

Financial Year Number of people Average length of imprisonment term
2012-13 10 1 year and 3 months
2013-14 11 1 year and 5 months
2014-15 10 1 year and 2 months
2015-16 14 8 months
2016-17 11 9 months

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. The section includes data on all people sentenced for a principal offence of cultivating a non-commercial quantity of narcotic plants, not just those who received imprisonment.

Figure 5 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 imposed. The number of sentenced offences per person ranged from 1 to 19, while the median was 2 offences. There were 44 people (38.3%) 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 2.60.

Figure 5: 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, 2012–13 to 2016–17

Number of offences Number of people
1 44
2 38
3 13
4 9
5 to 9 8
10 or more 3

Table 2 shows the 10 most common offences for people sentenced for cultivating a non-commercial quantity of narcotic plants, by number and percentage. The last column sets out the average number of offences sentenced per person. For example, 38 of the total 115 people (33.0%) 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, 2012–13 to 2016–17

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Cultivating a non-commercial quantity of narcotic plants 115 100.0 1.16
2. Theft 38 33.0 1.50
3. Possess a drug of dependence 13 11.3 1.23
4. Deal with property suspected of being proceeds of crime 12 10.4 1.00
5. Trafficking a non-commercial quantity of a drug of dependence 9 7.8 1.11
6. Resist/obstruct/hinder police 4 3.5 1.00
7. Possess, use or carry a prohibited weapon (other than an imitation firearm) 3 2.6 3.00
8. Possess, carry or use an unregistered general category handgun 3 2.6 1.00
9. Possess equipment or material to traffick a drug of dependence 3 2.6 1.00
10. Use a drug of dependence 3 2.6 1.00
People sentenced 115 100.0 2.60

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants from 2012–13 to 2016–17 by length of total effective imprisonment term. The total effective imprisonment terms ranged from 13 days (combined with a community correction order) to 6 years, while the median total effective imprisonment term was 1 year (meaning that half of the total effective imprisonment terms were below 1 year and half were above).

The most common total effective imprisonment term was less than 1 year (31 people).

Figure 6: The number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants by length of total effective imprisonment term, 2012–13 to 2016–17

Total effective imprisonment length Number of people
Less than 1 year 31
1 to less than 2 years 20
2 to less than 3 years 6
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
Total people 63

Non-parole period

If a person is sentenced to a term of immediate imprisonment of less than one year, the court cannot impose a non-parole period. For terms between 1 year and less than 2 years, the court has the discretion to fix a non-parole period. For terms of imprisonment of 2 years or more, the court must impose a non-parole period in most circumstances. 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 in custody.

Of the 63 people who were sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants, 32 were eligible to have a non-parole period fixed.18 Of these people, 23 were given a non-parole period (72%). Figure 7 shows the number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants from 2012–13 to 2016–17 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 most common non-parole period imposed was 1 to less than 2 years (11 people); however, the most common outcome was that no non-parole period was imposed (40 people).

Figure 7: The number of people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants by length of non-parole period, 2012–13 to 2016–17

Non-parole period Number of people
Less than 1 year 9
1 to less than 2 years 11
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 40
Total people 63

Total effective sentences of imprisonment and non-parole periods

Figure 8 compares the average length of total effective sentences of imprisonment with the average length of non-parole periods from 2012–13 to 2016–17. This includes the averages for 2014–15 and 2016–17, where the total effective imprisonment length was lower than the non-parole period. This occurs when a large portion of cases involve offending attracting sentences of less than 1 year’s imprisonment for that year, which are too low to be eligible for a non-parole period.

From 2012–13 to 2016–17, the average length of total effective sentences for all people ranged from 9 months in 2015–16 to 1 year and 9 months in 2013–14. Over the same period, the average length of non-parole periods ranged from 9 months in 2015–16 to 2 years in 2016–17.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for cultivating a non-commercial quantity of narcotic plants, 2012–13 to 2016–17

Financial Year Average total effective length Average non-parole period
2012-13 1 year and 6 months 11 months
2013-14 1 year and 9 months 1 year and 2 months
2014-15 1 year and 4 months 1 year and 10 months
2015-16 9 months 9 months
2016-17 1 year and 2 months 2 years and 0 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for cultivating a non-commercial quantity of narcotic plants is available on SACStat.

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 is available on SACStat.

Summary

From 2012–13 to 2016–17, 115 people were sentenced in the higher courts for cultivating a non-commercial quantity of narcotic plants. Of these people, 63 (55%) were given a principal sentence of imprisonment. Both the median total effective imprisonment length and the principal imprisonment length was 1 year.

Total effective imprisonment lengths ranged from 13 days (combined with a community correction order) 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 accused is found to be unfit to stand trial or not guilty because of mental impairment. However, they 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. 196, which describes sentencing trends for cultivating a non-commercial quantity of narcotic plants between 2010–11 and 2014–15.

2. Data on first instance sentence outcomes presented in this Snapshot was obtained from the Strategic Analysis and Review Team at Court Services Victoria. Data on appeal outcomes was collected by the Sentencing Advisory Council from the Australasian Legal Information Institute, and was also 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 is accurate, the data is subject to revision.

3. In October 2017, the High Court delivered its judgment in Director of Public Prosecutions v Dalgliesh (A Pseudonym) [2017] HCA 41, in which it made two important findings about sentencing in Victoria. First, Victorian courts had been giving too much weight to current sentencing practices, which is just one of the factors courts are required to take into account when imposing a sentence. Second, where current sentencing practices are shown to be in error (for example, when they fail to adequately reflect community expectations) courts should change their practices immediately, not incrementally.

Although the High Court’s decision occurred after the five-year period of this Snapshot ended, it may result in considerable changes to sentencing patterns for future editions of the Snapshots.

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

5. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.

6. 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 566 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 offence over the five-year period from 2012–13 to 2016–17. Sentencing remarks were located for 544 cases (96%). 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.

7. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72B.

8. 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.

9. 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.

10. Criminal Procedure Act 2009 (Vic) s 29.

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

12. 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.

13. An immediate custodial sentence includes imprisonment, imprisonment combined with a community correction order, aggregate imprisonment, aggregate imprisonment combined with a community correction order and a partially suspended sentence.

14. Suspended sentences have been abolished in the higher courts for all offences committed on or after 1 September 2013 and in the Magistrates’ Court for all offences committed on or after 1 September 2014.

15. For example, initially the maximum term of imprisonment that could be combined with a community correction order was set at 3 months, but it was increased to 2 years in September 2014 and reduced to 1 year in March 2017.

16. Refer to endnote 12.

17. Data presented in this section does 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 offence of cultivating a non-commercial quantity of narcotic plants. From 2012–13 to 2016–17, 7 people received an aggregate form of imprisonment.

18. A total of 31 people were not eligible to have a non-parole period fixed because they were given a total effective sentence length of less than one year.