There seems to be a lot of confusion about the legality of growing cannabis plants in South Australia. We often act for people who are under the impression that it is okay to grow a few plants and are surprised that they have ended up before a court.
So, how many cannabis plants can you grow in South Australia?
The relevant law is contained in the Controlled Substances Act 1984.
The first thing to understand is that it is not actually legal to grow any cannabis plants in South Australia. Rather, the number of plants determines the penalty that can be imposed and the procedure for dealing with the matter.
The Act makes it an offence to “cultivate a controlled plant” (including cannabis). There are two main offences.
The first involves growing cannabis artificially (ie hydroponically or with the use of an artificial light source), growing more than the “prescribed number” of plants or growing cannabis intending to supply or administer it to another (supplying or administering is very different to selling). This offence can get you two years in prison or a fine of $2,000 or both. The important thing to note is that any hydroponic cultivation is a serious offence – even if it’s just one plant.
The second offence involves cultivating “not more than the prescribed number of plants”. The prescribed number of plants is five. The penalty for this offence is a fine of $1,000 or imprisonment for six months or both. Again, these plants have to be naturally grown. If you use artificial cultivation methods you will have committed the more serious offence noted above.
Both of the above offences will result in you having to go to court.
The legislation also contains a concept called a “simple cannabis offence”. A simple cannabis offence (for present purposes) involves cultivating not more than one cannabis plants (but not by artificial means – see above). Generally, if you have committed a simple cannabis offence by growing just one plant naturally, you will be given an expiation notice rather than being summoned to court. You can simply pay the fine and that will be the end of the matter. You may pay the fine without any acknowledgement of guilt – which means you will not have any criminal record. If a simple cannabis offence does end up in court (because, for example, you elected to be prosecuted rather than paying the fine), the court cannot impose imprisonment as a penalty.
It is important to note that the above is a very general outline. There are other more serious offences contained in the legislation. For example, growing more than ten plants will create a presumption that you were growing the cannabis with the intention of selling it. The law may have changed since this article was written.
If you are under investigation or have been charged with any offences relating to the cultivation or sale of cannabis, you should seek urgent legal advice by calling Dewar Legal on (08) 8311 3964.