In Australia it is an offence against section 307 of the Criminal Code Act 1995 (Cth) to import or export a border controlled plant or border controlled drug.
What constitutes Drug Importation?
You can be found guilty of the offence if you have imported or exported a border controlled plant or border controlled drug.
“Import” means bringing the thing or causing the thing to be brought into Australia across a border
“Export” means causing the thing to leave Australia across a border.
Schedule 4 of the Criminal Code Regulations 2002 provides a list of the border controlled plants and border controlled drugs along with what quantities constitute a marketable quantity and a commercial quantity.
Things that constitute importing and exporting a border controlled plant or border controlled drug are:
- Taking a prohibited drug on a plane from Australia to another country.
- Bringing a border controlled plant or border controlled drug on a plane to Australia from another country.
- Sending a border controlled plant or border controlled drug to another country in the mail.
- Having a border controlled plant or border controlled drug sent in the mail from another country
What the police must prove
For you to be found guilty of the offence of drug importation the prosecution must prove beyond a reasonable doubt that you:
- Imported or exported a substance; and
- That substance was a border controlled plant or border controlled drug; and
- You intended to import or export a substance that was a border controlled plant or drug; or
- You were reckless as to whether the substance was a border controlled plant or drug.
Possible defences for a Drug Importation charge
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
Section 313.2 offers a defence to the charge where the accused held a reasonable belief that the conduct was justified or excused under a law.
No Commercial Intent
It is a partial defence to the charge if the accused can demonstrate that they did not intend, or believe that another person intended to sell the border controlled drug. In the case where this defence successfully raised, the court can reach an alternative verdict under section 307.4 which carries a lesser penalty.
This defence is not available if the quantity of the border controlled drug is more than a commercial quantity.
For commonwealth offences, the commonwealth defence of duress applies. This defence is found under section 10.2 of the Criminal Code which says that a person cannot be criminally liable for an offence if the offence was committed under duress. According to Commonwealth law a person is said to have committed an offence under duress if they reasonably believe that:
- A threat has been made and that threat will be carried out if they don’t commit the offence, and
- There is no reasonable way the threat can be alleviated, and
- The conduct is a reasonable response to the threat.
The defence of duress does not apply if the person committing the offence voluntarily associated themselves with the person who made the threat and the association was made for the purpose of carrying out offences of a like nature.
Penalties for Drug Importation
An offence of importing/exporting drugs is a serious offence against the Commonwealth which carries a significant term of imprisonment. Maximum penalties for an offence against section 307 of the Criminal Code Act 1995 range from 2 years imprisonment to life imprisonment.
The maximum penalties for a charge of import/export a border controlled plant or drug are:
- Life imprisonment
- 7,500 penalty units
- Or both
- 25 years
- 5,000 penalty units
- Or both
Less than marketable quantity:
- 10 years imprisonment
- 2,000 penalty units or both
No commercial intent:
- 2 years imprisonment
- 400 penalty units
- Or both
Due to the seriousness of the offence,a first offender will likely be sentenced to a period of imprisonment, especially if they are found to have imported a commercial quantity or a marketable quantity of a border controlled drug. However the court has a wide range of sentencing options available to them.
Because drug importation is an offence against the Commonwealth, if you are found guilty you will be subject to Commonwealth penalties.
Discharge offender without proceeding to conviction 19B
The court may under section 19B discharge the offender without proceeding to conviction after having regard to:
- the character, antecedents, age, health or mental condition of the person;
- the extent to which the offence is of a trivial nature; or
- the extent to which the offence was committed under extenuating circumstances;
After considering those factors they may dismiss the charge. The may also discharge the offender on Conditional Release without conviction.
Conditional release of offender after conviction
When a person is convicted of an offence against the commonwealth the court may by order release the person if the person gives security that they will comply with the conditions of their release. These conditions are that the person agrees to:
- be of good behaviour (but for a period not exceeding 5 years);
- make such reparation or restitution or pay such compensation or costs as the court specifies in the order; and
- comply with any other conditions the court thinks fit to specify.
Recognizance release order/suspended sentence
This is an order made under section 20(1)(b). It is similar to a suspended sentence as the court sentences that offender to a period of imprisonment but directs that person to be released upon giving security as referred to above.
Additional sentencing alternative under section 20AB of the Crimes Act 1914 (cth)
Sentencing alternatives under NSW law are also available if they are listed under section 20AB. Alternatives listed under this section are a Community Corrections Order and an Intensive Corrections Order.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for Drug Importation
Matters involving the importation of drugs are serious commonwealth offences. They are complicated and require substantial work to understand their complexities. Our Lawyers at First Offence Legal are experienced in representing clients in these matters can can help you navigate this complex area of law.
If you or anyone you know has been charged with an offence you should contact First Offence Legal and book your free no obligation consultation today. Remember you should always make First Offence Legal your first defence.