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Sentences and penalties range from 1 year to life imprisonment for drug premises, manufacturing drugs, and importation of drugs in Australia, depending on the drug type, quantity & weight. Here we outline common importation, drug premises, and manufacturing offences, penalties, quantities and available defences, including importing prescription drugs into Australia, and more.
While this article is a complete guide written by our very own drug lawyers Sydney based, it’s strongly recommended to get tailored and personalised advice if you’re facing a drug charge.
Drug Manufacturing
Drug manufacturing offences include to manufacture, produce, or knowingly take part in the manufacture or production of prohibited drugs. Drug manufacturers can face heavy maximum penalties ranging from 2 years to life imprisonment, according to s24 Drug Misuse and Trafficking Act 1985 (NSW).
What is Manufacturing Drugs?
‘Manufacturing’ is defined as extracting or refining a drug and includes manufacturing it with a view to using it in the manufacturing process of the desired end product.
Definition of ‘Take Part In’ Manufacturing
‘Taking part in’ here means:
- Taking any steps in the process of that manufacture, or
- Participating in any steps in the process of that manufacture, or
- Causing any steps to be taken in the process of that manufacture, or
- Providing or arranging finance for any step in the process of that manufacture, or
- Providing the premises, where such steps can take place, where the accused is either the owner, occupier or lessee or is involved in participating in the management of this.
What is a Manufacturing Drug Charge
A manufacturing drug charge is a drug manufacturing allegation of making prohibited drugs in NSW, which result in being issued by police with a ‘Court Attendance Notice’ (CAN) requiring you to appear in the Local Court to answer the allegations. You may then either enter a plea of ‘guilty’ or ‘not guilty’ in court.
Manufacturing Drugs Sentences and Penalties
| Penalties for Drug Manufacturing NSW | |||
|---|---|---|---|
| Quantity | If Local Court | If District Court | If District Court + child is exposed in manufacture |
| Small Quantity | 2 years imprisonment and/or $5,500 fine | 15 years imprisonment and/or $220,000 fine | 18-years imprisonment and/or $264,000 fine |
| At least the Small Quantity but less than Commercial Quantity | 2 years imprisonment and/or $11,000 fine | 15 years imprisonment and/or $220,000 fine | Same penalties as above |
| Commercial Quantity | Cannot be dealt with in Local Court | 20 years imprisonment and/or $385,000 fine | 25-years imprisonment and/or $462,00 fine |
| Large Commercial Quantity | Cannot be dealt with in Local Court | Life imprisonment and/or $550,000 fine | Life imprisonment and/or $660,000 fine |
| Drug Weight Categories | Prohibited Plant/Drug | Small Quantity | Trafficable Quantity | Indictable Quantity | Commercial Quantity | Large Commercial Quantity | Amphetamine | 1 g | 3 g | 5 g | 250.0 g | 1 kg | Cocaine | 1 g | 3 g | 5 g | 250.0 g | 1 kg | Heroin | 1 g | 3 g | 5 g | 250.0 g | 1 kg | Lysergic acid | 0.0008 g | 0.003 g | 0.005 g | 0.5 g | 2 g | Methylamphetamine | 1 g | 3 g | 5 g | 250 g | 1 kg | MDMA/Ecstasy | 0.25 g | 0.75 g | 1.25 g | 125 g | 500g | |||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
If the drug is of commercial quantity in a drug manufacturing offence, the ‘standard non-parole period’ is 10-years imprisonment.
If the drug is of large commercial quantity in a drug manufacturing offence, the ‘standard non-parole period’ is 15-years imprisonment.
The ‘standard non-parole period’ is the prescribed ‘standard’ period the law requires Judges to consider imposing as a guide for determining the minimum period of jail before being eligible for release on parole. It only applies to offences involving manufacturing drugs where the drugs involve either the commercial or large commercial quantity.
The ‘standard non-parole period’ only applies as a guide for courts if the drug manufacturing offence is considered to fall in the middle-range of objective seriousness of offences of this kind.
Defences to Manufacturing Offences
You will be found not guilty of manufacturing prohibited drugs if:
- You obtain or transport the ingredients and implements which are then to be use in the manufacturing of the drugs. Doing this is not considered ‘manufacturing’, rather it is seen as taking preparatory steps in the process of manufacturing drugs. You will be not guilty if you merely take preparatory steps in the process of manufacturing.
- You did this due to necessity or duress.
- You merely loaded drug manufacturing equipment onto a vehicle, and then transport it to a destination.
- While attempting to manufacture drugs, you used substances which are not able to produce a prohibited drug.
- You merely purchase and possess some of the substances or materials capable of making a prohibited drug, but your conduct or actions do not form part of a systematic, planned or pre-arranged series of actions or operations.
- If this charge involves allegations that a child was exposed as a result of this offence, you will be not guilty if the exposed child’s health or safety was not endangered.
- You will be not guilty if the prosecution fails to prove any one of the elements required to make up the offence of manufacturing drugs-outlined below.
What Police Must Prove in Manufacturing Offences
To prove the offence of manufacturing prohibited drugs, police must prove each of the following elements beyond reasonable doubt:
- You manufactured a prohibited drug; or
- You produced a prohibited drug; or
- You ‘knowingly took part in’ either of the above two.
If the charge involves allegations that a child was exposed as a result, the prosecution will also be required to prove that:
- A child was exposed to the manufacturing or production process; or
- A child was exposed to substances that were stored for use in either of those processes.
What is the Penalty for Manufacturing Drugs? | Sentence Guidelines
| Sentence Guideline for Drug Manufacturing Offences | |
|---|---|
| Your level of involvement | The Judge may apply a less serious penalty if you can show that your involvement in the manufacture of the drug was limited. |
| Your level of sophistication | If you were involved in the technical arrangements of the drug manufacture process, for example communicating with others through coded means, the Judge will more than likely place a harsher sentence upon you. |
| The weight of the drug | As indicated in the above tables, the higher the weight or quantity of the drug, the more severe your sentence is likely to be. It is recommended to ensure you have a copy of the drug certificate relevant to your charge. The Police facts, which will be given to the Judge, will need to state the amount contained in your certificate. Often it is the case that the real weight of the drugs is less than the initial weight done by police. |
| Period of offending conduct | It is often the case that people are charged as a result of a police search or undercover operation. A Judge will consider the length of time you committed the offending conduct and apply a lighter sentence if it was over a short period. |
| Your drug addiction and any vulnerability | People sometimes commit these kinds of offences due to a struggle of their own drug addiction which allows them to fund their habit. This may also be compounded by an underlying mental illness which are all significant factors for a Judge to consider in imposing a more lenient sentence. |
How Long Do you Go to Jail for Making Drugs?
Making or manufacturing drugs carry up to life imprisonment for large commercial quantity. Up to 25-years imprisonment for commercial quantity, and up to 18-years jail for anything up commercial quantity. These are prescribed maximum penalties, which are rarely applied in real life. It’s possible not to get a jail sentence for making drugs.
Drug Importation Australia Laws | Importation of Drugs
Importation of drugs in Australia has a prescribed sentence ranging from 10 years to life imprisonment if the drug is a ‘border controlled drug’, according to drug importation legislation and regulations, including sections 307.1, 307.2 and 307.3 Criminal Code Act 1995 Cth (Commonwealth). The same applies to exporting a border controlled drug.
What does ‘importing’ mean? ‘Import’ is when the ‘border-controlled drug’ arrives in Australia from abroad, and is then delivered somewhere, where it ends up remaining within Australia. So essentially, it is when a person arranges and organises for a ‘border-controlled drug’ to be brought into Australia from another country.
What does ‘exporting’ mean? The act of exporting a ‘border-controlled drug’ is organising for and sending the substance to another country for sale.
Amongst the types of drug importation cases in Australia, the most serious is commercial quantity of drug importation offences.
What does cth mean in law? This is an abbreviation for Commonwealth, and often refers to Commonwealth legislation or regulations.
What is a ‘Border-Controlled Drug’?
A ‘border-controlled drug’ is outlined in schedule 2 of the Criminal Code Regulation 2019 (Clth).
Examples of this include, cannabis, cocaine, GHB, heroin, and MDMA.
Drug Importation Penalties
| Maximum Penalties for Drug Importation | |
|---|---|
| Quantity | Maximum Penalty |
| Importing Commercial Quantity | life imprisonment and/or fine of $1,575,000 under section 307.1 Criminal Code. |
| Importing Marketable Quantity | 25-years imprisonment and/or fine of $1,050,000 under section 307.2 Criminal Code. |
| Importing Any Other Quantity | 10-years imprisonment and/or fine of $420,000 under section 307.3 Criminal Code. |
| Weight categories for Border Controlled Drugs | |||||||
|---|---|---|---|---|---|---|---|
| MDMA/Ecstasy | Cocaine | Cannabis | Heroin | Methamphetamine | GHB | ||
| Marketable Quantity | 0.5g or more | 2g or more | 25kg or more | 2g or more | 2g or more | 2g or more | |
| Commercial Quantity | 500g or more | 2kg or more | 100kg or more | 1.5kg or more | 750g or more | 1kg or more | |
Maximum penalties are rarely given by a Judge, but it is important to be aware of them because a Judge will use the maximum as a guide when determining your sentence.
Federal police will usually weigh the border-controlled drug inaccurately (with the packaging and admixtures) soon after the arrest. The weight of the pure drug is a significantly relevant factor for a court to consider.
Penalties for drug importation or exportation offences depend on the category that the drug falls in, which depends on the weight/quantity of the drug.
Sentencing Guideline for Importing Drugs
The case of DPP v De La Rosa [2010] NSWCCA 194 is a guide for Judges to follow in determining an appropriate sentence for an offender who is guilty of importing drugs.
Some common factors include the level of involvement in the importation, any financial reward expected or received, and the weight or quantity of the drug.
A person guilty of the offence of importing drugs can generally expect to face the following types and lengths of penalties, dependent on which 1 of the below groups the case falls into.
| Sentence Guideline for Importing Commercial Quantity of Drugs | |
|---|---|
| Group Category and Penalty Range | Features of case |
| Group 1: 25-years to life imprisonment With 8.5 to 30 years non-parole period |
|
| Group 2: 18 to 24.5 years imprisonment With 10 to 16 years non-parole period |
|
| Group 3: 8 to 15 years imprisonment With 4 to 11 years non-parole period |
|
| Group 4: 6.25 to 8 years imprisonment With 3 to 4.5 years non-parole period |
|
| Sentence Guideline for Importing Traffickable/Marketable Quantity of Drugs | |
|---|---|
| Group Category and Penalty Range | Common Features of case |
| Group 1: 9 to 18 years imprisonment With 4 to 10 years non-parole period |
|
| Group 2: 6 to 9 years imprisonment With 3 to 5 years non-parole period |
|
| Group 3: 3.75 to 6 years imprisonment With 2 to 4.25 years non-parole period |
|
Defences to Drug Importation Offences
You will be found ‘not guilty’ to drug importation if:
- You didn’t know, or you didn’t believe that there was a ‘substantial risk’ that the substance being imported was a ‘border-controlled drug or plant’ at the time you had possession of it. This means that you cannot be guilty if you believed that there was a ‘mere possibility’ that the package contained a ‘border-controlled drug’ at the time of importing it.
- Mistaken identity: There is no evidence that you were the perpetrator who imported or intended to import the drugs.
- The substance imported was not a ‘border-controlled drug’ under the law.
- The drug wasn’t ‘imported’: you will not be guilty if the drugs didn’t arrive and/or remain in Australia from abroad.
- The pure weight of the drug does not fall within the weight category you are charged with. Usually the weight of the drug at the time police arrest you will include the packaging and admixtures leading to the weight being inaccurate. The drug certificate will reveal the true weight, which is usually revealed later in the proceedings.
- Duress or Necessity to commit the offence.
What Police Must Prove in Drug Importation Offences
Police must prove each of the following elements beyond reasonable doubt in order to prove the offence of importing or exporting a border controlled drug:
- You imported a substance; and
- You intended to import that substance; and
- That substance is a ‘border-controlled drug’; and
- You either knew the substance was a ‘border-controlled drug’ or you at least realised there to be a substantial risk (significant or real chance) that the package was a ‘border-controlled drug’ at the time of importing it; and
- In circumstances known to you, and the circumstances you were in at the time, it was not justifiable to take the risk of importing the substance; and
- You took that risk, of importing the substance.
Importing Prescription Drugs into Australia
Most schedule 4 drugs or medicines can be imported for personal use only. Schedule 4 drugs are listed under schedule 4 of the Poisons Standard. Not all can be imported though. Some drugs are prohibited for personal importation, for example, controlled substances can be imported only if you have the requisite license or authority.
Importing a prescription drug without proper authority or license can result in the Australian Border Force (ABF) seizing the drugs and potentially arresting you. Imported prescription drugs must contain a valid prescription from an authorised person such as a doctor or pharmacist.
Most drugs can be imported from overseas for personal use, including use for your family member according to the Personal Importation Scheme. Up to 3 months of supply of drugs can be imported without approval if:
- It doesn’t exceed 15months supply over a 1 year period,
- It’s not restricted under the Australian Customs Controls or quarantine rules, and they don’t contain a ‘controlled substance’ i.e. human growth hormone, and certain narcotics,
- It’s not an injection containing human or animal material,
- Their medicines in schedule 4 or 8 of the Poisons Standard, a prescription from an Australian-registered medical practitioner is held before it’s imported.
Is it Illegal to Import Prescription Drugs?
Most prescription drugs can be legally imported provided it is done with the requisite license or authority. For example, a prescription from a medical practitioner will be required before importing a prescription drug. Most prescription drugs, also known as schedule 4 drugs, can be imported for personal use if done legally.
What is Drug Importation?
Drug importation refers to the process when a border controlled drug comes to Australia from another country, by which time it’s delivered at a place within Australia to remain there. It is illegal to import drugs into Australia, according to the Criminal Code Act 1995 (Commonwealth).
Is it Illegal to Import Drugs?
Importing border controlled drugs is a criminal offence and illegal across all States and Territories in Australia, according to the Criminal Code Act 1995 (Commonwealth). It is also illegal to export a border controlled drug from Australia to any other country prescribed by the same legislation.
Possessing Imported Drug Charges
Possessing imported border controlled drugs in circumstances where the drugs were unlawfully imported to Australia carries criminal penalties ranging from 2-years to life imprisonment, depending on the drug weight quantity.
‘Possessing’ something is when you knowingly have exclusive physical custody or control of it to the exclusion of others not acting in concert with you.
The Australian federal police usually file this charge as a backup to drug importation charges.
Penalties for Possessing Imported Drugs
| Maximum Penalties for Possessing Imported Drugs | ||||||
|---|---|---|---|---|---|---|
| Qty | Maximum Penalty | |||||
| Possessing Commercial Quantity |
life imprisonment and/or $1,575,000 fine under section 307.5 Criminal Code (Clth). |
|||||
| Possessing Marketable Quantity |
25-years imprisonment and/or $1,050,000 fine under section 307.6 Criminal Code (Clth). |
|||||
| Possessing any Other Quantity |
2-years imprisonment and/or $84,000 fine under section 307.7 Criminal Code (Clth). |
|||||
The overall weight of the seized drugs by police usually includes the packaging and admixtures which is not relevant. It’s the pure quantity of the drug that the Judge will place significance on.
| Weight categories for Border Controlled Drugs | ||||||||
|---|---|---|---|---|---|---|---|---|
| MDMA/Ecstasy | Cocaine | Cannabis | Heroin | Methamphetamine | Amphetamine | LSD | GHB | |
| Marketable Quantity | 0.5g or more | 2g or more | 25kg or more | 2g or more | 2g or more | 2g or more | 0.002g or more | 2g or more |
| Commercial Quantity | 500g or more | 2kg or more | 100kg or more | 1.5kg or more | 750g or more | 750g or more | 2g or more | 1kg or more |
Defences to Possessing Imported Drugs
You will be found ‘not guilty’ to possessing imported drugs if:
- You did not have possession of (or attempt to possess) the drug when you were arrested.
- You had no knowledge that the drug was ‘unlawfully imported’.
- Lack of knowledge: you either didn’t know it was a drug, or you were not aware of there to be a ‘substantial risk’ that the package or substance was a ‘border-controlled drug or plant’ at the time of possessing it.
- The drug certificate reveals that the total pure weight of the drugs is less than the weight category you are charged with. i.e. marketable or commercial quantity of drugs. The pure weight is usually revealed later in the case when the drug certificate is obtained by police. This means that the initial weight alleged by police is usually inaccurate.
- Necessity or Duress: where you were forced or threatened to have possession of the drug.
What Police Must Prove in Possessing Imported Drug Cases
Police must prove each of the below elements beyond reasonable doubt in order to prove the offence of possessing an imported border controlled drug:
- You possessed a ‘border-controlled drug’- in the sense that you knew of its existence while having exclusive custody or control of it; and
- The drugs were imported unlawfully into Australia; and
- You either knew it was, or you were aware of the substantial risk that it was a ‘border-controlled drug’; and
The weight of the drug falls into one of the categories of ‘commercial’, ‘marketable’ or any other weight you are charged with.
Drug Premises Offences in NSW
In NSW, drug premises laws are defined as premises’ used for selling drugs or manufacturing drugs, according to s36TA Drug Misuse and Trafficking Act 1985 (NSW). It includes drug-involved premises used for doing something that assists the growth of prohibited plants inside a building for commercial purposes if it involves50 or more cannabis plants, or at least 5, but less than 50 cannabis plants if growing it for purposes of selling them.
Meaning of ‘Organising or Conducting’ Drug Premises
Organising or conducting a drug premise means where you act as a lookout, door attendant or guard to the premises.
Drug Premises Charges, Penalties and Sentences
| Section 36X Offence of Entering, Leaving, or being on Drug Premises | ||
|---|---|---|
| Offence Type | Maximum Jail | Maximum Fine |
| First Offence | 12-months imprisonment | $5,500 |
| Second Offence | 5-years imprisonment | $55,000 |
| section 36Y: Being Owner or Occupier of Premises, Knowingly Allow it to be used as Drug Premises Section 36Z: Organising or Conducting Drug Premises |
||
|---|---|---|
| Offence Type | Maximum Jail | Maximum Fine |
| First Offence | 12-months imprisonment | $5,500 |
| Second Offence | 5-years imprisonment | $55,000 |
| Knowing a Child Had Access to Premises, Exposing Child to Drugs, or the Supply Process, or Equipment Capable of Being Used to Administer Drugs |
||
|---|---|---|
| Offence Type | Maximum Jail | Maximum Fine |
| First Offence | 14-months imprisonment | $6,600 |
| Second Offence | 6-years imprisonment | $66,000 |
First-time offenders will be dealt with in the local court. Repeat offenders who are second or subsequent offenders will be dealt with in the District Court. Allowing premises to be used for drugs carry significant consequences.
Drug Premises Defences in NSW
For charges of s36X of entering, leaving or being on drug premises offences, you will be not guilty if:
- You were entering, leaving or on the premises for a lawful purpose or with a lawful excuse. I.e., you were visiting a friend or family on those premises, or
- You were acting under duress or necessity.
For charges of s36Y of being an owner or occupier of the premises in which you knowingly allow to be used as drug premises, you will be not guilty if:
- You were unaware that the premises were being used for the purposes of drug manufacture, cultivation or supply, or
- If charged with committing this offence while knowing that a child had access to the premises:
- The child was not exposed to the drug or equipment, or
- You did not know that a child had access to the premises, or
- The drugs or equipment used for drugs inside the premises did not pose a danger to the child’s health or safety, or
- You acted under necessity or duress.
For charges of s36Z of organising or conducting drug premises, you will be not guilty if:
- If you were not aware or could not reasonably be expected to have known that the premises were being organised or conducted for the purpose of drug manufacture, cultivation or supply, or
- If charged with committing this offence while knowing that a child had access to the premises
- The child was not exposed to the drug or equipment, or
- You did not have knowledge that a child had access to the premises, or
- The drugs or equipment used for drugs inside the premises did not pose a danger to the child’s health or safety, or
- You acted under duress or necessity.
For more information, speak to a team of drug premises lawyers in NSW.
What Police Must Prove in Drug Premises Offences
To prove the offence of drug premises, police must prove each of the offence elements beyond reasonable doubt.
If charged with s36X of entering, leaving or being on drug premises, police must prove the following elements beyond reasonable doubt:
- The prosecution must prove that you were inside, you were entering, or you were leaving the drug premises, and
- You did so without a lawful excuse.
If charged with s36Y of being the owner or occupier of the premises, which you knowingly allowed to be used as drug premises, police must prove the following elements beyond reasonable doubt:
- You own or occupy the drug premise, and
- You allowed the premises to be used for that purpose.
If charged with the above s36Y offence in addition to also knowing a child had access to the premises, police must prove the following elements beyond reasonable doubt:
- The prosecution must prove that you own or occupy a drug premise, and
- You have allowed the premises to be used for drug premises, and
- During that time, you were aware that a child (under 16 years of age) had access to the premises, and
- As a result of the child having access, the child was exposed to the drugs or plants, or equipment used for drugs; or the drug supply process
If charged with s36Z of organising or conducting drug premises, police must prove the following beyond reasonable doubt:
- You played a part in organising or conducting a drug premise (or assisted in doing this).
If charged with the above s36Z offence in addition to also knowing a child had access to the premises, police must prove the following elements beyond reasonable doubt:
- You played a part in organising or conducting a drug premise, and
- You were aware that a child (under 16 years of age) had access to the premises, and
As a result of the child having access, the child was exposed to the drugs or plants, or equipment used for drugs, or the drug supply process.
Frequently Asked Questions
Yes! If police are relying on exclusive or joint possession of the drugs, it can become very difficult for police to prove beyond reasonable doubt, that your guilty if there is no evidence of text messages, surveillance, or admission in a police interview.
It’s important in those circumstances to be careful before giving an interview. General and safest advice would be to exercise your right to silence and refuse answering any police questions.
There does not need to be evidence that you were aware of the specific ‘border-controlled drug’ that was being imported. For a finding of guilt, it is enough if you were aware that the package contained some ‘border-controlled drug’, even if you didn’t know the precise drug.
The prosecution will often try to prove that you had knowledge (or were at least aware of there being a substantial risk) that the package was a ‘border-controlled drug’ by looking into the circumstances of the evidence, to then ask the Court to infer this as the only reasonable inference open.
You can be charged with possession of unlawfully imported border-controlled drugs if you ‘attempted’ to possess the drug but did not actually do so. Examples of this is where you tried but you were unable to obtain the substance or where the drugs you collected were substituted with a fake substance.
Where you are charged under this section for possessing the imported border control drug, the police do not need to prove that you had any association with the importation of the drug.
Usually the Australian federal police will charge you for possession an unlawfully imported drug if they are unable to prove that you imported it.
You can still be guilty of possessing an unlawfully imported drug if you either collect or have possession of it, without being involved in the importation of it.
The case of Keung v R (2008) 191 A Crim 317 says that there does not need to be evidence that you knew the weight or quantity of the imported drugs. But there must be enough evidence to show that you had some knowledge as to the existence of the drugs imported- this can be shown if the evidence can show that you were aware of ‘a substantial risk’ that it was a ‘border-controlled drug’, not of the specific drug in the package.
For the prosecution to prove that you knew that the package had a ‘border-controlled drug’ in it, it must show that you either knew or were aware of there being a ‘substantial risk’ that it was a ‘border-controlled drug’.
This can be inferred from the circumstances of the case. The court will accept (or infer) that you had this knowledge if it is considered to be the only reasonable inference open on the evidence.
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