Drug offences and the importing of drugs is taken very seriously within the NSW legal system. If you have been charged with a drug offence involving a marketable quantity of a border-controlled drug, contacting an experienced lawyer will prove imperative to achieving the best possible outcome for your case.
The team here at Hamilton Janke lawyers are experts in drug offences and can provide advice and support to assist you in getting your best result.
Importing border-controlled drugs is a serious federal offence outlined under Division 307 of the Criminal Code 1995 (Cth).
Division 307 of the legislation outlines: “A person commits an offence if:
The Commonwealth Criminal Code defines ‘import’ as “Importing a substance into Australia and includes bringing the substance into Australia, and dealing with the substance in connection with its importation.”
Border-controlled drugs refer to prohibited drugs or plants which have crossed international borders. This differs from controlled drugs or plants, which are substances that do not have a connection to importation or exportation.
Division 307 of the Criminal Code 1995 (Cth) defines a ‘border-controlled drug’ as: A substance other than a growing plant that is:
All legally recognised border-controlled drugs are outlined in Schedule 2 of the Criminal Code Regulations 2002. The most common border-controlled drugs include heroin, methamphetamine, MDMA and cocaine.
Section 5E of the Criminal Code Regulations 2002 outlines all border-controlled plants. This includes Cannabis and Erythoxylon.
If the quantity of drugs with which you are charged with importing or exporting is a marketing quantity, this is an aggravating factor. In these circumstances, you will be charged with the more serious offence of Importing or exporting a marketable quantity of a border-controlled drug is a criminal offence outlined under Section 307.2 of the Criminal Code Act 1995.
If an individual is charged with importing or exporting a commercial quantity of a border-controlled drug, this is a more severe offence under Section 307.2 of the Criminal Code Act 1995.
What is classified as a marketable quantity depends on the drug itself, specified under the Criminal Code. Under Commonwealth legislation, the weight of the drug with which an individual is accused of importing refers to the pure weight of the drugs involved rather than the total weight. For example, if an individual has been found importing 2kg of cocaine at 10% purity, the relevant weight will be 200g, and they are to be charged with the importation of a marketable quantity.
‘Marketable quantities’ of more commonly imported drugs include:
The maximum penalties for drug importation in Australia are dependent on the quantity and type of the drug.
If an individual is found guilty of importing or exporting a quantity of ‘border-controlled drugs’ less than a marketable quantity, they are liable to a maximum penalty of 10 years imprisonment and/or a fine of 2,000 penalty units under Section 307.3 of the Criminal Code Act.
Importation or exportation of a ‘marketable quantity’ carries a maximum penalty of up to 25 years imprisonment, and/or a fine of 5,000 penalty units under Section 307.2 of the Criminal Code.
Importing or exporting a ‘commercial quantity’ of border-controlled drugs is one of Australia’s most serious drug offences. As such, those found guilty are liable to a maximum punishment of life imprisonment and/or a fine of 7,500 penalty units under Section 307.1 of the Criminal Code Act.
Under law, if you are charged with drug importation, the court has the discretion to sentence you to various penalties, including, but not limited to:
Due to the serious nature of drug importation charges, it is common for those found guilty to receive a custodial sentence.
Due to the nature of the offence, multiple offenders often carry out the importation of prohibited plants and drugs. This can necessitate “criminal liability provisions involving conspiracy, joint commission or accessorial liability in order to prosecute all those involved in an importation”. (CDPP)
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 importation would be committed pursuant to that agreement.
In circumstances where the Crown relies on the conspiracy provisions, evidence of actual importation is not necessary for an individual to be charged or found guilty.
In accordance with Commonwealth legislation, the crime of drug importation is an indictable offence. As such, a drug importation charge must be finalised in either the district or the supreme court, where the matter will most likely be heard before a judge and jury.
There are various criminal defences that are recognised in response to drug importation/exportation charges. These include, but are not limited to:
If you disagree with the allegations made against you, or you have a defence, you may enter a plea of not guilty. In these circumstances, your case will be committed to being heard in either the district or the supreme court, where both the defence and prosecution can present their cases before a panel of 12 jurors.
If you enter a plea of not guilty, you will not be charged with the offence unless the prosecution is able to prove to the jury beyond a reasonable doubt the elements of the charge.
If you choose to plead guilty to the importation or exportation of a border-controlled drug, you agree and take responsibility for the allegations made against you. In these circumstances, your matter will proceed to sentencing where a judge will determine an appropriate penalty based on the individual factors of your case.
If you wish to plead guilty, you are advised to enter this plea at the earliest possible opportunity to receive the greatest sentencing discount. The current maximum discount for an early plea in NSW is 25%.
As a criminal offence, the burden of proof lies on the prosecution to prove, beyond a reasonable doubt, that an individual has engaged in the importation or exportation of a border-controlled drug
In order to be convicted, the prosecution must prove beyond a reasonable doubt:
If the prosecution cannot prove these elements beyond a reasonable doubt, the accused will be found not guilty, and charges will be dropped.
If you are being charged with a criminal offence in NSW, it is vital that you seek legal advice and legal representation. The team at Hamilton Janke lawyers are experts in defending against drug offences, and can provide advice and support to assist you in getting your best result. Contact our expert Criminal Defence Lawyers now.
Hamilton Janke Lawyers are one of the top rated Criminal Law Firms in the region. We treat every client with the respect and commitment they deserve. This commitment to our profession has earned us a reputation which we are very proud.
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