Sentencing Snapshot 247: Sentencing Trends for Cultivating a Commercial Quantity of Narcotic Plants in the Higher Courts of Victoria 2014-15 to 2018-19

Date of Publication

Sentencing Snapshot no. 247 describes sentencing outcomes for the offence of cultivating a commercial quantity of narcotic plants in the County and Supreme Courts of Victoria from 2014-15 to 2018-19.

This is the most recent 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, 2020

Snapshot 247: Cultivating a Commercial Quantity of Narcotic Plants

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of cultivating a commercial quantity of narcotic plants[2] in the County and Supreme Courts of Victoria (the higher courts) from 2014-15 to 2018-19.[3] Adjustments made by the Court of Appeal to sentence or conviction as at June 2019 have been incorporated into the data in this Snapshot.[4]

Detailed data on cultivating a commercial quantity of narcotic plants and other offences is available on Sentencing Advisory Council Statistics (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.[5]

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 narcotic plants.[6] 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.[7]

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.[8] In relation to cannabis, which is the most common narcotic plant involved in these offences, a commercial quantity is 25 kg or 100 plants.[9] Different types of plants can also be combined in order to achieve a commercial quantity.[10]

Cultivating a commercial quantity of narcotic plants is an indictable offence that carries a maximum penalty of 25 years’ imprisonment and/or a fine of up to 3,000 penalty units.[11] 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 is a Category 2 offence, which means that a court cannot impose a non-custodial sentence except in particular circumstances.[12]

This Snapshot focuses on cases where cultivating a commercial quantity of narcotic plants was the principal offence, that is, cases where cultivating a commercial quantity of narcotic plants was the offence that received the most severe sentence.[13]

Cultivating a commercial quantity of narcotic plants was the principal offence in 4.4% of cases sentenced in the higher courts between 2014-15 and 2018-19.

People sentenced

From 2014-15 to 2018-19, 397 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 68 people sentenced for this offence in 2018-19, down by 6 people from the previous year. The number of people sentenced was highest in 2016-17 (100 people) and lowest in 2014-15 (61 people).

Figure 1: The number of people sentenced for cultivating a commercial quantity of narcotic plants by financial year

Financial year Total
2014-15 61
2015-16 94
2016-17 100
2017-18 74
2018-19 68
Total 397

Sentence types and trends

Figure 2 shows the proportion of people who received an immediate custodial sentence and non-custodial sentence for the principal offence of cultivating a commercial quantity of narcotic plants.

An immediate custodial sentence involves at least some element of immediate imprisonment or detention.[14] Over the five-year period, 93.7% of people were given an immediate custodial sentence. The highest proportion of custodial sentences was handed down in 2017-18 (98.6%) and the lowest in 2014-15 (86.9%). The proportion of people who received an immediate custodial sentence in 2018-19 was 98.5%, down slightly (by 0.1%) from the previous year.

Figure 2: The percentage of people who received an immediate custodial sentence and non-custodial sentence for cultivating a commercial quantity of narcotic plants by financial year

Financial year Immediate custodial sentence People sentenced Immediate custodial sentence Non-custodial sentence
2014-15 53 61 86.9% 13.1%
2015-16 82 94 87.2% 12.8%
2016-17 97 100 97.0% 3.0%
2017-18 73 74 98.6% 1.4%
2018-19 67 68 98.5% 1.5%
Total 372 397 93.7% 6.3%

Table 1 shows the number of people sentenced for cultivating a commercial quantity of narcotic plants from 2014-15 to 2018-19 by the most serious type of sentence imposed.[15] The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished.[16] Changes to community correction orders may have also influenced the sentencing trends over the five years covered by this Snapshot.[17]

Over the five-year period, the majority of people sentenced for cultivating a commercial quantity of narcotic plants received a principal sentence of imprisonment (92.4% or 367 of 397 people). The principal sentence is the sentence imposed for the charge that is the principal offence. The proportion of imprisonment sentences increased over the five years, from 82.0% of overall sentences in 2014-15 to 98.5% in 2018-19.

Table 1: The number and percentage of people sentenced for cultivating a commercial quantity of narcotic plants by most serious principal sentence type and financial year

Sentence type 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 50 (82.0%) 81 (86.2%) 96 (96.0%) 73 (98.6%) 67 (98.5%) 367 (92.4%)
Community correction order 3 (4.9%) 11 (11.7%) 3 (3.0%) 1 (1.4%) 1 (1.5%) 19 (4.8%)
Youth justice centre order 1 (1.6%) 1 (1.1%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (0.5%)
Fine 1 (1.6%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (0.3%)
Other 6 (9.8%) 1 (1.1%) 1 (1.0%) 0 (0.0%) 0 (0.0%) 8 (2.0%)
Total people sentenced 61 94 100 74 68 397

Principal and total effective sentences

The principal sentence describes sentences for the offence at a charge level (as described in the previous section). The total effective sentence describes sentences at a case level.

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 sometimes 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 2014-15 to 2018-19.

Principal sentence of imprisonment

Table 2 shows that a total of 367 people received a principal sentence of imprisonment for cultivating a commercial quantity of narcotic plants. Of these, 336 people received a non-aggregate term of imprisonment and 31 people received an aggregate term. There were 35 people who received a community correction order in addition to their term of imprisonment.

Table 2: The number and percentage of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants by sentence type and financial year

Type of imprisonment sentence 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 36 (72.0%) 61 (75.3%) 81 (84.4%) 65 (89.0%) 64 (95.5%) 307 (83.7%)
Imprisonment and community correction order (combined) 9 (18.0%) 12 (14.8%) 5 (5.2%) 1 (1.4%) 2 (3.0%) 29 (7.9%)
Total non-aggregate imprisonment 45 (90.0%) 73 (90.1%) 86 (89.6%) 66 (90.4%) 66 (98.5%) 336 (91.6%)
Aggregate imprisonment 3 (6.0%) 4 (4.9%) 10 (10.4%) 7 (9.6%) 1 (1.5%) 25 (6.8%)
Aggregate imprisonment and community correction order (combined) 2 (4.0%) 4 (4.9%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 6 (5.1%)
Total aggregate imprisonment 5 (10.0%) 8 (9.9%) 10 (10.4%) 7 (9.6%) 1 (1.5%) 31 (8.4%)
Total people sentenced to imprisonment 50 81 96 73 67 367

Figure 3 shows the length of imprisonment for the people who received a non-aggregate term.[18] Imprisonment terms ranged from 1 month and 13 days to 6 years and 6 months, while the median length of imprisonment was 2 years (meaning that half of the imprisonment terms were below 2 years and half were above).

The most common range of imprisonment term lengths was 2 to less than 3 years (116 people).

Figure 3: The number of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants by length of imprisonment term, 2014-15 to 2018-19

Imprisonment length Number of people
Less than 1 year 48
1 to less than 2 years 102
2 to less than 3 years 116
3 to less than 4 years 50
4 to less than 5 years 17
5 to less than 6 years 1
6 to less than 7 years 2
Total people sentenced 336

As shown in Figure 4, the average length of imprisonment imposed on people sentenced for cultivating a commercial quantity of narcotic plants ranged from 1 year and 7 months in 2015-16 to 2 years and 5 months in 2017-18. Over the five years, the average length of imprisonment for cultivating a commercial quantity of narcotic plants was 2 years and 1 month.

Figure 4: The average length of imprisonment imposed on people sentenced for cultivating a commercial quantity of narcotic plants by financial year

Financial year Number of people Average length of imprisonment term
2014-15 45 1 year and 8 months
2015-16 73 1 year and 7 months
2016-17 86 2 years and 2 months
2017-18 66 2 years and 5 months
2018-19 66 2 years and 2 months
Total 336 2 years and 1 month

Other offences finalised at the same hearing

Sometimes 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 that offenders were sentenced for alongside the principal offence of cultivating a commercial quantity of narcotic plants. The section includes data on all people sentenced for a principal offence of cultivating a 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 commercial quantity of narcotic plants by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 14, while the median was 1 offence. There were 217 people (54.7%) sentenced for the single offence of cultivating a commercial quantity of narcotic plants. The average number of offences per person was 1.84.

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, 2014-15 to 2018-19

Number of offences Number of people
1 217
2 108
3 36
4 18
5-9 16
10-14 2
Total 397

Table 3 shows the 10 most common offences, by number and percentage, for people sentenced for cultivating a commercial quantity of narcotic plants. The last column sets out the average number of offences sentenced per person. For example, 108 of the total 397 people (27.2%) also received sentences for theft (undefined). On average, they were sentenced for 1.07 counts of theft (undefined).

Table 3: 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, 2014-15 to 2018-19

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Cultivating a commercial quantity of narcotic plants 397 100.0% 1.02
2. Theft (undefined) 108 27.2% 1.07
3. Possess a drug of dependence 35 8.8% 1.31
4. Dealing with property suspected of being proceeds of crime 25 6.3% 1.12
5. Trafficking in a non-commercial quantity of a drug of dependence 14 3.5% 1.14
6. Cultivating a non-commercial quantity of narcotic plants 13 3.3% 1.69
7. Possess, carry or use a prohibited weapon (other than an imitation firearm) 8 2.0% 1.5
8. Possess cartridge ammunition without licence or permit 8 2.0% 1
9. Use a drug of dependence 6 1.5% 1.17
10. Negligently deal with proceeds of crime 5 1.3% 1.4
People sentenced 397 100.0% 1.84

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants by length of total effective imprisonment term. The total effective imprisonment terms ranged from 1 month and 13 days to 7 years and 6 months, while the median total effective imprisonment term was 2 years (meaning that half of the total effective imprisonment terms were below 2 years and half were above).

The most common range of total effective imprisonment terms was 2 to less than 3 years (122 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, 2014-15 to 2018-19

Total effective imprisonment length Number of people
Less than 1 year 55
1 to less than 2 years 105
2 to less than 3 years 122
3 to less than 4 years 57
4 to less than 5 years 20
5 to less than 6 years 6
6 to less than 7 years 1
7 to less than 8 years 1
Total people sentenced 367

Non-parole period

If a person is sentenced to a term of immediate imprisonment of less than 1 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. If the court fixes a non-parole period, the person must serve that period before becoming eligible for parole. If the court does not set a non-parole period, the person must serve the entirety of their imprisonment term in custody.

Of the 367 people who were sentenced to imprisonment for cultivating a commercial quantity of narcotic plants, 55 were not eligible for parole because their total effective sentence was less than one year. Of the 312 people who were eligible to have a non-parole period fixed, 273 were given a non-parole period (87.5%).

Figure 7 shows the number of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants, by length of non-parole period. Non-parole periods ranged from 6 months to 5 years, while the median non-parole period was 1 year and 4 months (meaning that half of the non-parole periods were below 1 year and 4 months and half were above). There were 94 people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants who did not have a non-parole period imposed.[19]

The most common range for non-parole periods was 1 to less than 2 years (173 people).

Figure 7: The number of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants by length of non-parole period, 2014-15 to 2018-19

Non-parole period Number of people
Less than 1 year 36
1 to less than 2 years 173
2 to less than 3 years 57
3 to less than 4 years 5
4 to less than 5 years 1
5 to less than 6 years 1
No non-parole period 94
Total people 367

Total effective sentences of imprisonment and non-parole periods

Figure 8 represents the 273 people who were sentenced to imprisonment for cultivating a commercial quantity of narcotic plants and for whom the non-parole period could be determined. Figure 8 compares the average length of total effective sentences with the average length of non-parole periods for these people by financial year.[20]

From 2014-15 to 2018-19, the average length of total effective sentences ranged from 2 years and 2 months in 2015-16 to 2 years and 10 months in 2017-18. Over the same period, the average length of non-parole periods ranged from 1 year and 3 months in both 2014-15 and 2015-16 to 1 year and 8 months in 2017-18.

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

Figure 8: The average total effective sentence length and the average non-parole period for people sentenced to imprisonment with a non-parole period for cultivating a commercial quantity of narcotic plants by financial year

Financial year Average total effective sentence length Average non-parole period
2014-15 2 years and 3 months 1 year and 3 months
2015-16 2 years and 2 months 1 year and 3 months
2016-17 2 years and 6 months 1 year and 5 months
2017-18 2 years and 10 months 1 year and 8 months
2018-19 2 years and 7 months 1 year and 6 months

Summary

From 2014-15 to 2018-19, 397 people were sentenced for cultivating a commercial quantity of narcotic plants in the higher courts. Of these people, 367 (92.4%) were given a principal sentence of imprisonment.

The median principal imprisonment length and the median total effective imprisonment length were both 2 years.

Total effective imprisonment lengths ranged from 1 month and 13 days to 7 years and 6 months, and non-parole periods (where imposed) ranged from 6 months to 5 years.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 222, which describes sentencing trends for cultivating a commercial quantity of narcotic plants between 2012-13 and 2016-17.

2. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72A.

3. 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.

4. In August 2016, the Court of Appeal held that there was a need to uplift sentencing practices for cultivating a commercial quantity of drugs: Nguyen v The Queen [2016] VSCA 198. Further, in October 2017, the High Court held that where current sentencing practices are shown to be inadequate, the courts should change their practices immediately, not incrementally: Dalgliesh (A Pseudonym) v The Queen [2017] HCA 41. Although both of these judgments occurred partway through the reference period in this Snapshot, they may have resulted in considerable changes to sentencing practices for cases sentenced subsequently.

5. Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 72-72B.

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

7. 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 491 cases that had drug cultivation (Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72, 72A or 72B) as the principal offence over the five-year period from 2014-15 to 2018-19. Sentencing remarks were located for 469 cases (95.5%). 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.

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

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

10. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70 (definition of aggregated commercial quantity).

11. 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.

12. Sentencing Act 1991 (Vic) ss 5(2H)-(2I).

13. 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.

14. For the principal offence of cultivating a commercial quantity of narcotic plants, an immediate custodial sentence included imprisonment, imprisonment combined with a community correction order, aggregate imprisonment, aggregate imprisonment combined with a community correction order, a partially suspended sentence and a youth justice centre order.

15. For example, if the principal offence has a sentence that includes imprisonment combined with a community correction order, imprisonment is the most serious sentence type.

16. 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.

17. 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.

18. Data presented in this section does not include imprisonment lengths for people who received an aggregate sentence of imprisonment. Figures 3 and 4 only report on non-aggregate sentences of imprisonment for the principal offence of cultivating a commercial quantity of narcotic plants.

19. The 94 people sentenced to imprisonment with no non-parole period consisted of 55 people who were not eligible for parole and 39 people who were eligible but were not given a non-parole period with their sentence.

20. Figure 8 only includes cases where the total effective sentence is an imprisonment term and a non-parole period is applied. This means cases with imprisonment combined with a community correction order (which do not receive a non-parole period) are excluded from Figure 8.