The production potential of cannabis plantations can be calculated without assessing the plants’ sex

Two men were charged with attempting to cultivate 175 cannabis plants, which in total would have yielded at least 5,250 grams of smokable material containing THC (tetrahydrocannabinol), the active substance in cannabis. The production was discovered by the police before the crop was completed. The Court of Appeal found that the expected yield had to be halved because some of the plants might have been male plants, which produce a clearly lower THC output than female plants. It is therefore mainly female plants that are cultivated.

The question before the Supreme Court was whether, and to what extent, the sex of the plants should be taken into account when calculating the production potential of a cannabis plantation.

The Supreme Court held that, as a general rule, it is not necessary to determine whether the crop contains male plants. Only in cases where the cultivation must be assumed to have been carried out by persons with particularly low competence, or where other circumstances indicate a particularly low production capability, may the sex composition of the plants be relevant to calculating production potential. In a professionally established operation, the occurrence of male plants can normally be disregarded. Therefore, the production potential from cannabis cultivation may be determined according to a standard assumption, based on each plant yielding 30–40 grams of dried marijuana with a THC concentration of seven per cent.

The Court of Appeal had not proceeded on the basis of such a presumption, and the sentence was therefore based on an unduly low production potential. The Supreme Court imposed a new sentence on the defendants, which was set at slightly over two years. The sentences also included certain additional offences.

The judgment provides guidance on determining production capacity in cannabis cultivation.

Read the whole judgment (Norwegian only) (PDF)

Area of law: Criminal law, drugs

Key paragraphs: 36 and 37

Justices: Webster, Arntzen, Berglund, Sivertsen, Poulsen