For the offence of cultivating not less than a commercial quantity of a narcotic plant, the jury must be satisfied beyond reasonable doubt that the accused intended to cultivate at least the threshold number of plants constituting a commercial quantity. It is not sufficient to direct the jury that the accused intended to cultivate the plants actually grown if the accused did not know or intend to cultivate that number. Where a conviction on a commercial quantity count is quashed, the court may substitute a conviction on the alternative simple cultivation count and re-sentence. On re-sentencing, the risk of discretionary forfeiture of lawfully acquired property under the Confiscation Act 1997 (Vic) should be given considerable weight as a mitigating factor.
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