Legislators seem to be at pains to not distinguish between the two offences; trafficking in a commercial quantity of a drug of dependence (read: cannabis) and cultivation of commercial quantities of cannabis, having set the same maximum penalty (25 years) for both charges.
Specifically, a trafficking charge requires possession of a commercial quantity of saleable parts of the plant (ie leaves and flowering heads) whereas commercial quantity by weight for the cultivation can include the entirety of the plant – with the roots removed. Evidence of commerciality or exchange in a cultivation case would be aggravating where these are elements of the trafficking and while they have the same maximum penalty in practice, trafficking is considered the more serious of the two charges and is regarded with more opprobrium by the Courts.
However, for the Courts sentencing an accused there is one other distinction – one that might mean that a client who pleads guilty to commercial quantity cultivation does not necessarily need to serve an immediate sentence of imprisonment.
Parliament has never been fond of suspended sentences; they view them as a ‘soft option’ that has no real deterrent effect or consequence for the offender. In an effort to curtail the Courts’ power of discretion, legislation was introduced in 2010 that categorised offences for which a gaol sentence, either wholly or partially suspended, could not be imposed. These categories are listed as “serious” offences; i.e. manslaughter, rape, sexual offences against children and “significant” offences, which include recklessly causing serious injury, aggravated burglary, arson and also the charges of trafficking in a commercial quantity in a drug of dependence and trafficking in a large commercial quantity. However, nowhere in the Sentencing Act is the charge of cultivation of a narcotic plant – either in a commercial or a large commercial quantity – defined as a “significant” offence.
This apparent anomaly can clearly be used to the client’s advantage. Firstly, in negotiations with the prosecution to withdraw charges of trafficking in exchange for a plea to cultivation, where possible and secondly, when making submissions to the sentencing Judge.
As Justice of Appeal Batt expressed in the case of DPP v Rzek  VSCA 97 , “Save, perhaps, in exceptional circumstances, cultivation of a narcotic plant, being cannabis, in a commercial quantity requires the imposition of a custodial sentence, though it may possibly be suspended wholly”.
This is a pretty “significant” detail, wouldn’t you agree?
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