Importing Marketable Quantity of Border-controlled Drugs

Importing border-controlled drugs attracts serious federal charges and potential life sentences. Experienced defence lawyers are vital to navigating these complex matters.

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.

Drug Offences Under the Criminal Code Act 1995

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 person imports or exports a substance; and
the substance is a border-controlled drug or border-controlled plant.”

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.”

What is a Border-controlled Drug?

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:

listed by regulation as a border-controlled drug; or
a drug analogue of a listed border-controlled drug; or
determined by the AFP Minister as a border-controlled drug under section 301.13 (which deals with emergency determinations of serious drugs)

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.

What is a Marketable Quantity?

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:

At least 0.5g but less than 500g of MDMA (‘ecstasy)
At least 2g but less than 750g of amphetamines
At least 2g but less than 1.5kg of heroin
At least 2g but less than 2kg of cocaine
At least 25kg but less than 100kg of cannabis

Penalties

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:

Imprisonment
Intensive Correction Order (ICO)
Community Correction Order (CCO)
Fine
Conditional Release Order (CRO)

Due to the serious nature of drug importation charges, it is common for those found guilty to receive a custodial sentence.

Conspiracy and Joint Provisions

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.

Where Will My Case Be Heard?

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.

Defences for Importing Marketable Quantity of Border-controlled Drugs in NSW

There are various criminal defences that are recognised in response to drug importation/exportation charges. These include, but are not limited to:

Lack of Commercial Intent

Commonwealth legislation provides a defence to offences under Regulation 307.2 and 307.3, where the accused did not intend or believe that another person intended to sell the drug or plant.

In these circumstances, the burden of proof is with the defence to establish that they did not intend or believe another person intended to sell the drug/s or plant/s in question.

As a partial defence, proving ‘lack of commercial intent’ will not result in an acquittal for the accused. They will likely be charged with importing/exporting border-controlled drugs without commercial intent.

Outlined under Section 307.4, this carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units. This defence doesn’t apply to charges under regulation 307.1, commercial quantities.

Duress

As a commonwealth offence, defences of duress under section 10.2 of the Commonwealth Criminal Code are applicable to drug offences. In this regard, it must be established 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

Pleading Not Guilty to an Importing Marketable Quantity Charge in NSW

If you plead ‘guilty’, you will then be sentenced accordingly. At sentence, there is the opportunity to make submissions about your personal circumstances and objective factors that may mitigate the punishment you receive.

Pleading Guilty to an Importing Marketable Quantity Charge in NSW

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%.

Burden of Proof

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:

That the accused intentionally imported a substance into Australia
The substance imported is a border controlled drug, and the accused was reckless as to that fact
If being charged under section 307.1 or 307.2 the prosecution must prove that the quantity was above the commercial or marketable quantity
If the prosecution cannot prove these elements beyond a reasonable doubt, the accused will be found not guilty, and charges will be dropped.

Looking for a Criminal Defence Lawyer Who Can Help?

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.