Sentencing Snapshot no. 293 describes sentencing outcomes for the offence of cultivating a commercial quantity of narcotic plants in the County and Supreme Courts of Victoria from 2018-19 to 2022-23.
This is the most recent Snapshot for this offence.
You can access case summaries for cultivating a commercial quantity of narcotic plants from the Judicial College of Victoria’s Sentencing Manual Case Summaries.
You can also access statistics for cultivating a commercial quantity of narcotic plants on SACStat.
Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2024
Snapshot 293: 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 2018-19 to 2022-23.[3] Adjustments made by the Court of Appeal to sentence or conviction as at June 2023 have been incorporated into the data in this Snapshot. Detailed data on cultivating a commercial quantity of narcotic plants and other offences is also available on SACStat.
The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides for a set of offences involving cultivation of a narcotic plant that distinguishes between large commercial, commercial and non-commercial quantities of the plant.[4] This Snapshot 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 25 249 kg or 100 999 plants.[6]
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 3,000 penalty units.[7] If the offence was committed on or after 20 March 2017, it is a category 2 offence, meaning courts must impose a custodial sentence except in particular circumstances.[8]
This Snapshot focuses on cases where cultivating a commercial quantity of narcotic plants was the principal offence, that is, cases where this was the offence that received the most severe sentence.[9]
Cultivating a commercial quantity of narcotic plants was the principal offence in 2.9% of cases sentenced in the higher courts between 2018-19 and 2022-23.
Effect of COVID-19 on sentencing data
The data in this Snapshot is likely to have been affected by the COVID-19 pandemic particularly in the 2020-21 and 2021-22 financial years. For instance:
- the number of people sentenced in the period after March 2020 may be lower than in other years because the pandemic caused delays in court proceedings
- court backlogs may have led to prioritisation of more serious cases in that period and therefore higher imprisonment rates than in other years
- prison sentences may be shorter during that period than in other years to reflect the combined effect of:
- guilty pleas having an 'augmented mitigatory effect' (Worboyes v The Queen [2021] VSCA 169) because they help to relieve the strain on the justice system and
- the experience of prison being more burdensome due to increased stress on prisoners and their families and changes in custodial conditions.
People sentenced
From 2018-19 to 2022-23, 249 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 29 people sentenced for this offence in 2022-23, down from 44 in the previous year. The number of people sentenced was highest in 2018-19 (68 people) and lowest in 2022-23 (29 people).
There were no people who received a custodial or non-custodial supervision order for the principal offence of cultivating a commercial quantity of narcotic plants during the five-year period.[10]
Figure 1: The number of people sentenced for cultivating a commercial quantity of narcotic plants, by financial year
| Financial Year | Number |
|---|---|
| 2018-19 | 68 |
| 2019-20 | 49 |
| 2020-21 | 59 |
| 2021-22 | 44 |
| 2022-23 | 29 |
| Total | 249 |
Sentence types and trends
Figure 2 shows the proportion of people who received an immediate custodial sentence or 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.[11] The rate of immediate custodial sentences was lowest in 2022-23 (89.7%) and highest in 2019-20 (100.0%). Over the five-year period, 96.0% of people were given an immediate custodial sentence.
Figure 2: The percentage of people who received an immediate custodial sentence or non-custodial sentence for cultivating a commercial quantity of narcotic plants, by financial year
| Financial Year | Immediate custodial sentence | Non-custodial sentence |
|---|---|---|
| 2018-19 | 98.5% | 1.5% |
| 2019-20 | 100.0% | 0.0% |
| 2020-21 | 94.9% | 5.1% |
| 2021-22 | 93.2% | 6.8% |
| 2022-23 | 89.7% | 10.3% |
Table 1 shows the principal sentence types imposed for cultivating a commercial quantity of narcotic plants from 2018-19 to 2022-23. The principal sentence is the most serious sentence imposed for the principal offence in a case.[12]
Over the five-year period, most people sentenced for cultivating a commercial quantity of narcotic plants received a principal sentence of imprisonment (96.0% or 239 of 249 people). The remaining people received a community correction order (2.8% or 7 people),[13] or a drug and alcohol treatment order (1.2% or 3 people).[14]
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 | 2018-19 | 2019-20 | 2020-21 | 2021-22 | 2022-23 | Total |
|---|---|---|---|---|---|---|
| Imprisonment | 67 (98.5%) | 49 (100.0%) | 56 (94.9%) | 41 (93.2%) | 26 (89.7%) | 239 (96.0%) |
| Community correction order | 1 (1.5%) | 0 (0.0%) | 3 (5.1%) | 2 (4.5%) | 1 (3.4%) | 7 (2.8%) |
| Drug and alcohol treatment order | 0 (0.0%) | 0 (0.0%) | 0 (0.0%) | 1 (2.3%) | 2 (6.9%) | 3 (1.2%) |
| Total people sentenced | 68 | 49 | 59 | 44 | 29 | 249 |
Principal and total effective sentences of imprisonment
The following sections analyse the use of imprisonment for the principal offence of cultivating a commercial quantity of narcotic plants from 2018-19 to 2022-23.
The principal sentence describes sentences for the offence at a charge level.
The total effective sentence is the sentence imposed for all charges in a case and applies at a case level. Where a case involves multiple charges, the total effective sentence will be either the same as or longer than the principal sentence.
Principal sentences of imprisonment
There were 239 principal sentences of imprisonment for cultivating a commercial quantity of narcotic plants. Table 2 shows that 233 (97.5%) were non-aggregate imprisonment terms, and 6 were aggregate imprisonment terms.[15] There were 6 people who received a community correction order in addition to their imprisonment term.
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
| Sentence type | 2018-19 | 2019-20 | 2020-21 | 2021-22 | 2022-23 | Total |
|---|---|---|---|---|---|---|
| Imprisonment | 64 (97.0%) | 47 (97.9%) | 55 (100.0%) | 38 (97.4%) | 24 (96.0%) | 228 (97.9%) |
| Imprisonment and community correction order | 2 (3.0%) | 1 (2.1%) | 0 (0.0%) | 1 (2.6%) | 1 (4.0%) | 5 (2.1%) |
| Total non-aggregate imprisonment | 66 (98.5%) | 48 (98.0%) | 55 (98.2%) | 39 (95.1%) | 25 (96.2%) | 233 (97.5%) |
| Aggregate imprisonment | 1 (100.0%) | 0 (0.0%) | 1 (100.0%) | 2 (100.0%) | 1 (100.0%) | 5 (83.3%) |
| Aggregate imprisonment and community correction order | 0 (0.0%) | 1 (100.0%) | 0 (0.0%) | 0 (0.0%) | 0 (0.0%) | 1 (16.7%) |
| Total aggregate imprisonment | 1 (1.5%) | 1 (2.0%) | 1 (1.8%) | 2 (4.9%) | 1 (3.8%) | 6 (2.5%) |
| Total | 67 | 49 | 56 | 41 | 26 | 239 |
Figure 3 shows the imprisonment lengths for the 233 non-aggregate imprisonment terms for the principal offence of cultivating a commercial quantity of narcotic plants. Imprisonment lengths ranged from 21 days[16] to 5 years and 6 months,[17] while the median imprisonment length was 2 years and 3 months.
The most common range of imprisonment lengths was 2 to less than 3 years (77 principal sentences).
Figure 3: The number of principal sentences of imprisonment for cultivating a commercial quantity of narcotic plants, by range of imprisonment lengths, 2018-19 to 2022-23
| Imprisonment length | Number |
|---|---|
| Less than 1 year | 20 |
| 1 to less than 2 years | 64 |
| 2 to less than 3 years | 77 |
| 3 to less than 4 years | 45 |
| 4 to less than 5 years | 24 |
| 5 to less than 6 years | 3 |
| Total | 233 |
Figure 4 shows the average length of the 233 non-aggregate imprisonment terms for the principal offence of cultivating a commercial quantity of narcotic plants each financial year. The average imprisonment length ranged from 2 years and 2 months in 2018-19 to 2 years and 6 months in 2021-22. Over the five-year period, the average imprisonment length for cultivating a commercial quantity of narcotic plants was 2 years and 4 months.[18]
Figure 4: The average imprisonment length imposed for cultivating a commercial quantity of narcotic plants, by financial year
| Financial year | Number of people | Average imprisonment length |
|---|---|---|
| 2018-19 | 66 | 2 years and 2 months |
| 2019-20 | 48 | 2 years and 3 months |
| 2020-21 | 55 | 2 years and 5 months |
| 2021-22 | 39 | 2 years and 6 months |
| 2022-23 | 25 | 2 years and 4 months |
Total effective sentences of imprisonment
Figure 5 shows the lengths of total effective sentences of imprisonment in cases where cultivating a commercial quantity of narcotic plants was the principal offence. Total effective sentences ranged from 21 days to 5 years and 6 months,[19] while the median total effective sentence was 2 years and 4 months.
The most common range of total effective sentences was 2 to less than 3 years (73 cases).
Figure 5: The number of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants, by range of total effective sentences, 2018-19 to 2022-23
| Total effective sentence length | Number |
|---|---|
| Less than 1 year | 21 |
| 1 to less than 2 years | 66 |
| 2 to less than 3 years | 73 |
| 3 to less than 4 years | 49 |
| 4 to less than 5 years | 22 |
| 5 to less than 6 years | 8 |
| Total | 239 |
Non-parole periods
If a person is sentenced to an imprisonment term of less than 1 year, the court cannot impose a non-parole period. For imprisonment terms between 1 year and less than 2 years, the court has the discretion to fix a non-parole period. For imprisonment terms 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 239 people who were sentenced to imprisonment for the principal offence of cultivating a commercial quantity of narcotic plants, 218 were eligible to have a non-parole period fixed.[20] Of these people, 191 were given a non-parole period (96.4%).[21]
Figure 6 shows the lengths of the non-parole periods for people sentenced to imprisonment for the principal offence of cultivating a commercial quantity of narcotic plants. Non-parole periods ranged from 7 months to 3 years and 2 months, while the median non-parole period was 1 year and 6 months.
The most common range of non-parole periods was 1 to less than 2 years (115 people).
Figure 6: The number of people sentenced to imprisonment for cultivating a commercial quantity of narcotic plants, by range of non-parole periods, 2018-19 to 2022-23
| Non-parole period | Number |
|---|---|
| Less than 1 year | 20 |
| 1 to less than 2 years | 115 |
| 2 to less than 3 years | 44 |
| 3 to less than 4 years | 12 |
| No non-parole period | 48 |
| Total | 239 |
Average total effective sentences of imprisonment and non-parole periods
Figure 7 represents the average total effective sentences and average non-parole periods each year for the 191 people who were sentenced to imprisonment for the principal offence of cultivating a commercial quantity of narcotic plants and who received a non-parole period.
The average total effective sentence ranged from 2 years and 7 months in 2018-19 to 3 years and 1 month in 2021-22. Over the same period, the average non-parole period ranged from 1 year and 6 months in 2018-19 to 1 year and 10 months in 2021-22.
Figure 7: The average total effective sentences and non-parole periods for people sentenced to imprisonment with a non-parole period for cultivating a commercial quantity of narcotic plants, by financial year
| Financial year | Number | Average total effective sentence | Average non-parole period |
|---|---|---|---|
| 2018-19 | 53 | 2 years and 7 months | 1 year and 6 months |
| 2019-20 | 34 | 2 years and 10 months | 1 year and 8 months |
| 2020-21 | 50 | 2 years and 9 months | 1 year and 7 months |
| 2021-22 | 32 | 3 years and 1 month | 1 year and 10 months |
| 2022-23 | 22 | 2 years and 8 months | 1 year and 8 months |
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.
Figure 8 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 13, and the median was 2 offences. There were 110 people (44.2%) sentenced for the single offence of cultivating a commercial quantity of narcotic plants. The average number of offences per person was 1.9.
Figure 8: 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, 2018-19 to 2022-23
| Number of offences | Number |
|---|---|
| 1 | 110 |
| 2 | 70 |
| 3 | 35 |
| 4 | 18 |
| 5-9 | 13 |
| 10+ | 3 |
| Total | 249 |
Table 3 shows the 10 most common offences co-sentenced alongside cultivating a commercial quantity of narcotic plants. The last column sets out the average number of offences sentenced per case. For example, 80 of the total 249 people (32.1%) were also sentenced for theft. On average, those 80 people were sentenced for 1.1 charges of theft per case.
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 alongside cultivating a commercial quantity of narcotic plants, 2018-19 to 2022-23
| Offence | Number of cases | Percentage of cases | Average number of proven offences per case |
|---|---|---|---|
| Cultivating a commercial quantity of narcotic plants | 249 | 100.0% | 1.0 |
| Theft | 80 | 32.1% | 1.1 |
| Deal with property suspected of being proceeds of crime | 39 | 15.7% | 1.1 |
| Possess a drug of dependence | 20 | 8.0% | 1.5 |
| Trafficking in a non-commercial quantity of drugs | 20 | 8.0% | 1.2 |
| Cultivating a non-commercial quantity of narcotic plants | 8 | 3.2% | 2.3 |
| Possess cartridge ammunition without a licence or permit | 7 | 2.8% | 1.0 |
| Possess, use or carry a prohibited weapon | 6 | 2.4% | 1.3 |
| Negligently deal with proceeds of crime | 6 | 2.4% | 1.0 |
| Commit an indictable offence while on bail | 4 | 1.6% | 1.0 |
| Total | 249 | 100.0% | 1.9 |
Summary
From 2018-19 to 2022-23, 249 people were sentenced in the higher courts for the principal offence of cultivating a commercial quantity of narcotic plants. Of those 249 people, 239 (96.0%) received a principal sentence of imprisonment.
Total effective sentences of imprisonment ranged from 21 days to 5 years and 6 months, and non-parole periods ranged from 7 months to 3 years and 2 months. The median total effective sentence was 2 years and 4 months, while the median non-parole period was 1 year and 6 months.
On average, people sentenced for the principal offence of cultivating a commercial quantity of narcotic plants were sentenced for 1.9 offences each, with a maximum of 13 offences.
Further data on cultivating a commercial quantity of narcotic plants is available on SACStat.
Endnotes
1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 271, which describes sentencing trends for cultivating a commercial quantity of narcotic plants between 2016 17 and 2020-21.
2. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72A.
3. Data on first-instance sentencing 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 Snapshot is accurate, the data is subject to revision.
4. Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 72 72B.
5. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70 (definition of commercial quantity).
6. Drugs, Poisons and Controlled Substances Act 1981 (Vic) sch 11 pt 2.
7. The value of a penalty unit changes each year and can be found on the Council's website.
8. Sentencing Act 1991 (Vic) ss 3(h) (definition of category 2 offence), 5(2H) (2I).
9. If a person is sentenced for a case with a single charge, that offence is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence that attracted the most serious sentence according to the sentencing hierarchy.
10. Custodial and non-custodial supervision orders are not sentencing orders as they are imposed in cases in which the accused is found unfit to stand trial or not guilty because of mental impairment. However, they are mentioned in this report as they are an important form of disposition of criminal charges.
11. Immediate custodial sentences are mostly imprisonment, but they can also include partially suspended sentences, youth justice centre orders, hospital security orders, residential treatment orders, and combined custody and treatment orders.
12. For example, if the principal offence receives a combined order of imprisonment and a community correction order pursuant to section 44 of the Sentencing Act 1991 (Vic), imprisonment is recorded as the principal sentence.
13. Of the 7 cases where a community correction order was imposed, sentencing remarks are available for 5 of them: DPP v Radovanovic [2019] VCC 213; DPP v Papalia [2021] VCC 13; DPP v Wagener [2021] VCC 665; DPP v Stankovic [2021] VCC 1968; DPP v Ho [2022] VCC 138. In 4 of those 5 cases (the exception is DPP v Ho [2022] VCC 138), the offence was a category 2 offence but the sentencing court found either substantial and compelling circumstances that were exceptional and rare or the offender had impaired mental functioning that would result in them being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
14. Of the 3 cases where a drug and alcohol treatment order was imposed, sentencing remarks are available for 1 of them: DPP v Britton (a pseudonym) [2022] VCC 847.
15. A court may impose an aggregate sentence of imprisonment on multiple charges sentenced at the same time. These sentences are a single imprisonment term but the sentences imposed on individual charges are not specified. A case may include a combination of aggregate and non-aggregate sentences.
16. This was a combined order of 21 days' imprisonment (time already served) and a community correction order: DPP v Alexiadis [2019] VCC 1807.
17. Sentencing remarks are not publicly available in the case in which a principal offence of cultivating a commercial quantity of narcotic plants received 5 years and 6 months' imprisonment. The next longest principal sentence of imprisonment was 5 years: DPP v Le [2020] VCC 504; DPP v Cu [2020] VCC 1954.
18. In August 2016, the Court of Appeal held that there was a need to uplift sentencing practices for 'mid-category' cultivation of a commercial quantity of drugs: Nguyen v The Queen [2016] VSCA 198. This may have continued to affect sentencing practices during the period covered in this Snapshot.
19. Sentencing remarks are not publicly available in the case in which a total effective sentence of 5 years and 6 months was imposed. The next longest total effective sentence of imprisonment was 5 years and 5 months: DPP v Le [2020] VCC 504.
20. 201 people were not eligible to have a non-parole period fixed because they were given a total effective sentence of less than 1 year.
21. 217 people were eligible to have a non-parole period fixed but did not receive one. This included 27 people who had a sentence length between 1 year and less than 2 years.
