What are the Defences and Penalties for Importing Drugs in Australia?

By Sahar Adatia and Jimmy Singh

 

Each year, billions of dollars in illegal drugs circle the globe, driven by the demand of millions of users. And yet, while authorities have become more rigorous in intercepting these drugs and apprehending their suppliers, so too have drug smugglers become more inventive when it comes to methods of transportation.

Late last month provided another case in point, with a trafficking incident so creative that it almost sounds like something you’d hear at a rave.

At the end of September, almost half a tonne of the party drug MDMA was discovered hidden in sausage-making machines, only to be intercepted and seized during a combined undercover operation between the Australian Federal Police and the Australian Border Force in Sydney.

Amounting to $57 million in street value and large enough to make 1.7 million pressed ecstasy pills, the stash of drugs arrived from Turkey and was detected concealed in the meat-mincing machines whilst en route to a supermarket in Sydney’s west.

The alleged drug haul, described by police as a “sophisticated concealment”, was taken over by the Australian Federal Police who replaced the supply with counterfeit drug packages and set up a sting operation to catch out any culprits related to the crime. Chocolate bars and air fresheners were also included in the package in an attempt to maintain the disguise.

After switching the drugs, Federal police officers tracked the delivery to an unsuspecting grocer in Auburn, New South Wales, where the mince-making machines were allegedly removed and then transported to an industrial butchery in Clyde.

A search warrant was then carried out at the western Sydney premises, where three men – a 24-year-old man from Coogee, a 29-year-old man from Lidcome and a 27-year-old Guildford man – were arrested over the incident. They are believed to be part of a “larger syndicate” dedicated to distributing illicit substances in the area.

The mince machines were also seized, along with a mobile phone and a small amount of cocaine.

Three Men Charged with Importing and Possessing a Commercial Quantity of a Border-Controlled Drug

Following the incident, charges were laid on all three men involved in the drug haul.

The 27-year-old Lidcome resident was charged with one count of importing a commercial quantity of a border-controlled drug, while the two other men were charged with attempting to possess a commercial quantity of the party drug.

The offences carry a maximum penalty of life behind bars.

As for the operators of the Auburn supermarket, authorities do not believe they were involved or aware of the contents of the consignment. It is anticipated, however that they will work in cooperation with the Federal police as the investigation unravels.

Concern from Federal Police: “A thirst in Australia for illicit drugs”

Speaking of the mass drug bust, Federal police Detective Superintendent Kirsty Schofield said the seizures confirm there is still a “thirst” in Australia for illicit drug.

“We’re always amazed at the thirst we have in Australia for illicit drugs,” Ms Schofield said.

“It’s a significant amount of drugs to be imported for just three men.

“Australians pay more for illicit substances, motivating smugglers to import the drugs into the country,” she said.

Superintendent Schofield also expressed her concern of the many lives that would have been devastated had the MDMA made its way to Australian streets.

“Had this drug seizure made its way to Australian streets, countless lives would have been affected. It could be users, health care workers that deal with drug issues each and every day, or the family that has been torn apart when deaths occur from illicit substance abuse,” Ms Schofield said.

“Seizures like this don’t address the issues of demand … but stopping almost half a tonne goes a long way to reducing the harm these drugs can cause our communities.”

A Positive: Effective Cooperation Between the Australian Federal Police and Australian Border Force

While the latest drug smuggling incident highlights the community’s thirst for drugs, Superintendent Schofield also said it underscores the effective cooperation between the Australian Federal Police and the Australian Border Force. Similarly, border force Investigations Commander Garry Low commended the “intelligence, training and technology” behind the operation.

“Within a week, we had detection at the border to arrest,” Superintendent Schofield said.

“It was only last weekend when we were talking about a 500kg cocaine seizure in Solomon Islands.

“Some of those forensic officers had just come back from Solomon Islands and they were deployed to the case.”

What are the Defences and Penalties for Importing Border-Controlled Drugs?

In Australia, it is illegal to export or import border-controlled drugs.

A ‘border-controlled drug’ is a list of drugs listed in schedule 4 of the Criminal Code Regulations 2002 (Cth). This includes methamphetamine, MDMA, cannabis, cocaine, GHB and Heroin.

The penalty for committing this offence will depend on the quantity and type of drug. The higher the drug quantity, the higher the penalty generally is.

Importing or exporting a ‘commercial quantity’ of ‘border-controlled drugs’ carries a penalty of up to life imprisonment and/or a fine of $1,575,000 under section 307.1 of the Criminal Code Act 1995 (Clth) (‘the Criminal Code).

Importing or exporting a ‘marketable quantity’ of ‘border-controlled drugs’ carries a penalty of up to 25 years imprisonment and/or fine of $1,050,000 under section 307.2 of the Criminal Code.

Importing or exporting any other quantity of ‘border-controlled drugs’ that don’t fit within the category of either marketable or commercial quantity carries a penalty of up to 10 years imprisonment and/or fine of $420,000 under section 307.3 of the Criminal Code.

The following table shows what the ‘marketable quantity’ and ‘commercial quantity’ is for the following ‘border-controlled drugs’.

Border Controlled Drug Marketable Quantity Commercial Quantity
Methamphetamine 250 g or more 750 g or more
MDMA 100 g or more 500 g or more
Cannabis 25 kg or more 125 kg or more
Cocaine 250 g or more 2 kg or more
GHB 250 g or more 1 kg or more
Heroin 250 g or more 1.5 kg or more

In order to be guilty for importing a commercial quantity of ‘border-controlled drugs’, the prosecution is required to first prove each of the following elements of the crime:

  1. You imported a substance; and
  2. You intended to import that substance; and
  3. That substance was found to be a ‘border-controlled drug’; and
  4. You at least realised that there was a ‘significant or real chance’ that the packages you were importing was a prohibited drug at the time it was imported; and
  5. In the circumstances you were in and known to you at the time, the court considers that it was unjustifiable to take the risk of importing it; and
  6. You still took that risk of importing it.
  7. The ‘border-controlled drug’ was at least the commercial quantity.

What does ‘import’ mean? ‘Import’ here means that there must be enough evidence to show that the ‘border-controlled drug’ arrived in Australia from abroad, and that it was delivered somewhere that resulted in it to remain in Australia.

Before you can be guilty of importing drugs, the prosecution must prove that you were aware that it was a ‘border-controlled drug’ at the time it was imported.

The case of Keung v R (2008) 191 A Crim 317 says that the prosecution doesn’t need to prove that you knew the amount that was imported. However, before you can be guilty, there needs to be enough evidence to prove that you had some knowledge of the existence of the drugs imported. That knowledge can be proven if the court can conclude from the evidence that you were aware of ‘a substantial risk’ that it was a ‘border-controlled drug’.

There doesn’t need to be proof that you were aware of the specific ‘border-controlled drug’ that was found, so long as you were aware of there being a ‘border-controlled drug’. This means you can still be guilty if the drug found was heroin while you believed it to be cocaine.

Knowledge or awareness that the substance was a border-controlled drug at the time it was imported can be inferred from looking into the circumstances of the case if that inference is the only reasonable inference open from the facts and circumstances of the case.

Defences to Importing Border-Controlled Drugs in Australia

Your drug importation charge will be dismissed on a not guilty verdict if any one of the following defences apply:

  • Where there is a reasonable possibility that you were not aware that the substance was a ‘border-controlled drug’.
  • Where the extent of your knowledge of the substance being a ‘border-controlled drug’ was a ‘mere possibility’ that the package contained such a substance.
  • Where you didn’t intend to import the substance, or you didn’t import it.
  • Where the substance is not a ‘border-controlled drug’.
  • Where you were acting under a necessity or duress.
  • In the case of ‘marketable quantity’ or a quantity other than ‘commercial quantity’ of border-controlled drugs, if there is a reasonable possibility that you didn’t intend to sell it (and where you didn’t believe that someone else intended to sell it).

Where you are charged with importing a ‘marketable quantity’ or a quantity other than ‘commercial quantity’ of a border-controlled drug, in circumstances you didn’t intend to sell it and you didn’t believe that someone else intended to sell it, then you can still be guilty of section 307.4 of the Criminal Code which carries a much lesser penalty of up to 2 years imprisonment and/or fine of up to $84,000.

The Defence and Penalties for Possessing Imported Border-Controlled Drugs

If Police Cannot Prove You Imported it with the Knowledge that it was a Prohibited Drug

In circumstances the prosecution is unable to prove that you imported a ‘border-controlled drug’ with the requisite knowledge that it was a prohibited drug, you can still be convicted of a charge of possessing unlawfully imported border-controlled drugs under section 307.7 of the Criminal Code if the police can prove the following elements of the crime:

  1. You possessed a substance (you had knowledge of its existence which you had exclusive custody or control of it to the exclusion of others); and
  2. That substance was unlawfully imported where you knew it was unlawfully un-lawfully imported; and
  3. You realised at the time it was unlawfully imported that there was a real or significant change that it was a ‘border-controlled drug’.

This offence carries a penalty of up to 2 years imprisonment and/or a $84,000 fine.

This charge will be dismissed if you have a defence of proving a reasonable possibility that you didn’t know that the border-controlled drug was unlawfully imported.

If you Didn’t Know that the Border-Controlled Drug was Unlawfully Imported

In circumstances the prosecution can’t prove that you imported the drugs with the requisite knowledge that it was a prohibited drug, and where you didn’t know that the package containing the border-controlled drug was unlawfully imported, you can still be convicted of a charge of Possessing a ‘border-controlled drug’ reasonably suspected of having been unlawfully imported if the following elements of the crime are proven under section 307.10:

  1. You had possession of the substance. This means that you knew of the existence of the substance and you had exclusive custody and control of it to the exclusion of others; and
  2. The substance is ‘reasonably suspected of having been unlawfully imported’. This is where the court can conclude from the evidence and circumstances that there is a reasonable basis to form a view that it was unlawfully imported; and
  3. You realised at the time it was imported that there was a significant or real chance that it was a ‘border-controlled drug’.

This offence carries a penalty of up to 2 years imprisonment and/or a fine of up to $84,000.

It is a defence to this charge where you will be found not guilty if you can prove that there is a reasonable possibility that the border-controlled drug was not unlawfully imported.

You will face a penalty of up to life imprisonment and/or $1,575,000 fine if, in addition to the above 3 elements, the prosecution also proves that the quantity of the ‘border-controlled drug’ was at least the ‘commercial quantity’. This is reflected in section 307.8 of the Criminal Code.

A defence to a s307.8 charge is where you prove that there is a reasonable possibility that the drug wasn’t unlawfully imported.

You will face a penalty of up to 25 years imprisonment and/or $1,050,000 fine if, in addition to those 3 elements of the crime, the prosecution also proves that the quantity of the ‘border-controlled drug’ was within the ‘marketable quantity’. This is reflected in section 307.9 of the Criminal Code.

A defence to a s307.9 charge is where you can prove that there is a reasonable possibility that the drug wasn’t unlawfully imported or where there is a reasonable possibility that you didn’t intent to sell the drug (and you didn’t believe that someone else intended to sell it).

Our drug defence lawyers specialise in drug importation cases in all courts. We are available 24/7 to take your calls if you wish to discuss anything further from this blog.

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