Cultivating cannabis in New South Wales.

What does cultivate a prohibited plant mean?

Section 23 of the Drug Misuse and Trafficking Act 1985 makes it an offence to cultivate, or knowingly take part in the cultivation of, a prohibited plant. The Act gives cultivate a wide meaning. It covers sowing or scattering the seed of the plant, and it also covers planting, growing, tending, nurturing and harvesting. So a person does not have to have put the seed in the ground to be guilty. Watering plants, feeding them, moving them into the sun or trimming them can each be cultivation.

The words "knowingly take part in" widen the offence again. They catch a person who helps run a grow without owning it, such as someone who minds a crop, pays for equipment, or lets a house be used for the plants. The Crown must prove the person knew what was going on. That knowledge element is the same one the High Court read into drug offences in He Kaw Teh v The Queen (1985) 157 CLR 523, available on JADE. A person who genuinely did not know a plant was cannabis, or did not know a grow was on their property, has an answer to the charge.

What are prohibited plants in NSW?

A prohibited plant is a cannabis plant, meaning any growing plant of the genus Cannabis, together with a small number of other species named in the Act, such as the opium poppy and the coca plant. Cannabis is behind almost every cultivation charge in the state. The Act draws a line between the living plant and the leaf. A growing plant is dealt with under section 23. Once the leaf is picked, it is treated as a prohibited drug, and possession or supply of it is charged under different sections. That difference matters, because the plant offence is measured by the number of plants, not the weight of the drug.

The full text of the Act is on the NSW legislation site. Cultivation sits alongside the other main drug offences in the same Act: manufacture under section 24, supply under section 25, and possession under section 10.

How many cannabis plants can you grow for personal use in NSW?

There is no lawful number. New South Wales does not allow home growing for personal use. One plant is an offence, and so is fifty. The idea that a person can keep a couple of plants for their own use comes from other places. It reflects the law in the Australian Capital Territory, and a change that was proposed for New South Wales but never passed.

The Cannabis Cautioning Scheme is often confused with a personal-use allowance. It is not one. That scheme lets police give a caution, up to two times, for possession of up to 15 grams of cannabis leaf. It does not apply to a growing plant. So a person found tending even one plant cannot be cautioned under it and is liable to be charged. The Australian Capital Territory is the real point of contrast. Since early 2020 an adult there may grow up to two cannabis plants, to a maximum of four per household, for personal use, though the plants must not be grown by artificial means and Commonwealth law still treats the conduct as an offence. None of that applies across the border in New South Wales.

How the number of plants sets the charge.

Schedule 1 of the Act fixes the plant numbers that decide how serious a cultivation charge is. For cannabis grown outdoors or by ordinary means, the small quantity is 5 plants, the indictable quantity is 50 plants, the commercial quantity is 250 plants, and the large commercial quantity is 1,000 plants. These figures do not change whether growing is an offence. They set the ceiling on the penalty and decide which court hears the matter.

The number counts plants, not weight. That produces a result people find surprising. The State Library of New South Wales puts it plainly: having 250 seedlings is treated as more serious than having five large plants, even though the five plants may weigh far more. Small plants and cuttings still count towards the total. A person who checks nothing else after a charge should check the plant count first, because it drives the maximum penalty and the court.

What is the penalty for cultivating cannabis in NSW?

For fewer than a commercial quantity of cannabis plants, cultivation is an offence under section 23(1) with a maximum on indictment of 10 years imprisonment and a fine of 2,000 penalty units, which is $220,000. That maximum is set for the worst case and is a long way from where a small backyard grow lands. Where the number of plants does not exceed the indictable quantity of 50, the matter can be dealt with in the Local Court, unless the prosecution elects to take it to the District Court. In the Local Court the maximum is two years imprisonment and a fine of up to 50 penalty units, which is $5,500, where the number is not more than the small quantity, or up to 100 penalty units, which is $11,000, where it is more. The Judicial Commission of NSW collects the sentencing material for these offences.

The penalty rises sharply with the plant count. Growing not less than a commercial quantity is an offence under section 23(2), with a maximum of 15 years imprisonment and a fine of 3,500 penalty units, which is $385,000. Growing not less than a large commercial quantity carries 20 years and a fine of 5,000 penalty units, which is $550,000. A large commercial cultivation committed since 1 January 2008 also carries a standard non-parole period of 10 years, a figure the court uses as a reference point for the middle of the range of objective seriousness. A charge at that level belongs with the firm's note on large commercial drug matters.

What is enhanced indoor cultivation?

Section 23(1A) creates a separate offence for growing plants by "enhanced indoor means" for a commercial purpose. Enhanced indoor means covers growing inside a building or structure using hydroponics, nutrient-enriched water, artificial light or applied heat to lift the yield. Parliament added the offence in 2006 to target organised production run out of houses. The Judicial Commission records that indoor set-ups produce higher yields, so the law sets lower plant thresholds for them.

For indoor cannabis grown by these means, a commercial quantity is between 50 and 199 plants, and a large commercial quantity is 200 or more. So a hydroponic room with 60 plants can be charged as a commercial cultivation, where the same 60 plants grown outdoors would fall below the 250-plant commercial line. There is a further offence in section 23A. It applies where a person grows plants by enhanced indoor means and exposes a child under 16 to the cultivation process, or to the chemicals stored for it. That offence carries higher penalties again.

Can you be charged for growing one plant?

Yes. The offence has no minimum. One plant is enough, and the plant does not have to be grown, flowering or of any use. A seedling counts. That answers a question people often ask about how far along a plant has to be. The law looks at whether the plant was being grown, not at whether it ever produced anything a person could use. A single plant sits at the very bottom of the range and is dealt with in the Local Court.

At that level the sentence is rarely a gaol term. The court has the full range open to it, from a fine or a conditional release order up to, in the worst case, the maximum. For a person with no record, a small grow for personal use, and a good explanation, a section 10 dismissal without a conviction is a realistic outcome. The real question in most small matters is not the size of any penalty. It is whether a conviction is recorded at all.

Personal use, or a commercial grow?

Where the plant count is below the commercial threshold, whether the grow was for the person's own use or for sale makes a large difference to the sentence. The Crown must prove a commercial purpose beyond reasonable doubt. In R v Seman, a case discussed by the Judicial Commission, the prosecution could not rule out that 137 plants were for personal use, though the court held that a custodial sentence was still open. In R v Emerton, the offender persuaded the court that 321 plants, above the commercial quantity, were for his own heavy use, on unusual facts. As the court noted in R v Dopson (2003) 141 A Crim R 302, available on JADE, where the amount is well above the commercial line the sheer quantity tells against a personal-use claim, even if the grower never intended to sell.

Where the grow is plainly commercial, the case takes on the features of a supply matter. The court looks at the scale, the sophistication of the set-up, the role the person played, and any financial gain. Those factors sit in section 21A of the Crimes (Sentencing Procedure) Act 1999, covered in the firm's note on aggravating and mitigating factors. A large grow can also draw a second set of charges, for the cash and assets it produces, dealt with as proceeds of crime.

What defence work looks like in a cultivation case.

The first question is the search. Police need a lawful basis to enter and search a home or land, usually a warrant. If the plants were found on an unlawful search, the evidence can be challenged and, in some cases, excluded. The second question is the person's link to the plants. Cultivation is often charged against everyone connected to a house, so the Crown has to prove that this person grew the plants or knowingly took part in growing them. A person who lived at an address but had nothing to do with the grow, or who did not know it was there, may not be guilty at all.

The third question is the count and the purpose. Not every plant found is a viable plant, and the total drives the maximum. Where the grow is small and the number is disputed at the margin, the difference between the small quantity and the indictable quantity can decide which court hears the matter. Where the count is not in real dispute, the work turns to outcome, and in a personal-use case that means keeping the purpose personal and keeping a conviction off the record. A person with a drug dependence can ask to be assessed for the Magistrates Early Referral Into Treatment program, which lets them address the underlying problem while the matter is adjourned. A well-prepared plea, with the right material before the court, is often the difference between a conviction that follows a person for years and a dismissal that does not.

Frequently asked.

What does cultivate a prohibited plant mean?

Cultivate means to sow or scatter the seed of a prohibited plant. The Drug Misuse and Trafficking Act 1985 extends it to plant, grow, tend, nurture or harvest the plant. So watering or trimming plants can be cultivation, even if the person did not put the seed in the ground. The offence also catches a person who knowingly takes part in the cultivation, which covers helping to run a grow without owning it.

How many cannabis plants can you grow for personal use in NSW?

None. There is no lawful number in New South Wales. Growing a single plant is an offence under section 23 of the Drug Misuse and Trafficking Act 1985. A 2023 bill that would have allowed a few plants did not become law. The Cannabis Cautioning Scheme covers possession of a small amount of leaf, not a growing plant. The ACT is different, where an adult may grow up to two plants, to a maximum of four per household, though Commonwealth law still applies.

What is the penalty for cultivating cannabis in NSW?

For fewer than a commercial quantity, the maximum on indictment is 10 years and a fine of 2,000 penalty units, which is $220,000. Where the number of plants is not more than the indictable quantity of 50, the matter is usually heard in the Local Court, where the maximum is two years and a fine of up to 100 penalty units, which is $11,000. A commercial quantity carries 15 years and a large commercial quantity carries 20 years.

Can you be charged for growing one cannabis plant?

Yes. One plant is enough. The offence sets no minimum, and the plant does not have to be mature or to have produced any usable cannabis. A seedling counts. A single plant sits at the low end of the range and is dealt with in the Local Court, where a section 10 dismissal or a conditional release order without conviction is possible for a person with no record.

What are prohibited plants in NSW?

A prohibited plant is a cannabis plant, or a plant of another species prescribed as prohibited, such as the opium poppy and the coca plant. Cannabis is behind almost all cultivation charges in New South Wales. The Act treats a growing plant differently from cannabis leaf that has been picked, which is dealt with as a prohibited drug.

What is enhanced indoor cultivation?

Enhanced indoor cultivation is growing plants inside a building using hydroponics, artificial light, nutrient-enriched water or heat to boost the yield. Section 23(1A) makes this a separate, more serious offence for a commercial purpose. The plant thresholds are lower for indoor grows: 50 plants is a commercial quantity and 200 is a large commercial quantity.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 12 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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