The importation of border controlled drugs is a federal offence under section 307 of the Criminal Code 1995 (Cth). It is a serious offence, reflected by the fact that the maximum penalties range from 2 years imprisonment up to imprisonment for life.
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What the prosecution must prove
There are a number of “ingredients” or elements to the offence of importation that the prosecution must prove. These are:
- That a person imported a substance into Australia, and imported that substance intentionally
- The substance imported is a border controlled drug, and the person was reckless as to that fact
- The quantity was above the commercial or marketable quantity, as the case may be
The term “import” is defined in the Criminal Code as importing a substance into Australia, and includes bringing the substance into Australia; and dealing with the substance in connection with its importation. This is a new definition and was inserted into the Commonwealth Criminal Code in January 2011 following the decision of Campbell v Regina (2008) 73 NSWLR 272.
There has been very little consideration of the new definition of import since it took effect, however it would appear to extend the type of conduct that could constitute importation to dealings after the substance has arrived in Australia.
As this is a Commonwealth criminal offence, the provisions of Part 2.3 of the Commonwealth Criminal Code apply in relation to circumstances in which there is no criminal responsibility. Specifically in relation to drug offences, defences of duress under Section 10.2 apply. In this regard, it is noted that what must be established is that a person “reasonably believed” that:
- A threat has been made that will be carried out unless an offence is committed; and
- There is no reasonable way that the threat can be rendered ineffective; and
- The conduct is a reasonable response to the threat.
In the context of a drug importation, the conduct referred to would be the importation of drugs.
It should also be noted that it is required that the prosecution establish that a person had the necessary mental element when committing the offence of drug importation. Specifically, that they intended to import a substance, and were reckless as to the substance being a boarded controlled drug. There must be sufficient evidence to prove the requisite mental or fault element.
For offences involving less than a commercial quantity, there is a defence open if it can establish that they neither intended, nor believed, that another person intended to sell the border controlled drug. This is referred to as a “lack of any commercial intent”. That defence does not apply when the quantity is a commercial quantity.
Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled drugs without a lack of commercial intent, Section 307.4. That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).
Will I receive a criminal record, and could I go to jail?
Upon conviction, you will receive a criminal record and are liable to imprisonment.
Sections 307.1 to 307.3 of the Criminal Code 1995 (Cth) provide for specific offences in relation to the importation or exportation of border controlled drugs or plants. These apply depending on the quantity of drug imported as well as whether there was any commercial intent and carry different maximum . The three offences are:
- Section 307.1 – the importation of commercial quantities of border controlled drugs or border controlled plants: maximum penalty of life imprisonment
- Section 307.2 – the importation of marketable quantities of a border controlled drug or border controlled plants: maximum penalty of 25 years imprisonment
- Section 307.3 – the importation of border controlled drugs or border controlled plants: maximum penalty of 10 years imprisonment
The maximum penalty depends on the quantity of drug involved. In contrast to NSW drug offences, the relevant quantity of the drug is the pure quantity. Accordingly, references to marketable or commercial quantities are references to the pure quantity of the drug not including any add mixtures.
The following table provides information in relation to the relevant marketable and commercial quantities of some border controlled drugs:
|Marketable||2 gms||2 gms||0.5 gms||2 gms||25 years imprisonment and/or a fine of 5000 penalty units|
|Commercial||2 kgs||0.75 kgs||0.5 kgs||1.5 kgs||life imprisonment and/or a fine of 7500 penalty units|
The sentence for an offence of importing a prohibited drug will depend on a number of factors, including the quantity as well as the offender’s role in the importation. The fact that an offender is a “mere courier”, if established, does not necessarily entitle the offender to any particular leniency.
General sentencing factors, such as the offender’s criminal history, demonstration of remorse, prospects of rehabilitation etc. will always be relevant on sentence.
Conspiracy and joint provisions
It is often the case that in large drug importation matters, the Crown relies on the conspiracy provisions in the Commonwealth Criminal Code. This may be where there is evidence of an agreement to import a border controlled drug into the country, and that agreement involves a number of individuals who entered into an agreement and intended that an importation would be committed pursuant to that agreement.
When the Crown relies on the conspiracy provisions, it is not necessary for there to be any evidence of an actual importation, although that is obviously strong evidence of an agreement.