What is the Law on Importing a Border Controlled Drug in Australia?

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Nearly 800 kg of cocaine was detected at our border in the financial year 2017-2018.

With this in mind, it is reported that 384kg of cocaine has been found inside a heavy construction machine weighing about 18,000kg.

It’s reported that the Caterpillar excavator was shipped into Australia from South Africa. Upon arrival, border force conducted an X-ray of the machinery which revealed anomalies.

As a result, the cocaine worth about $144 million was found to be concealed within the steel hydraulic lifting arm.

Police, on Sunday morning made 2 arrests, after armed forces presented themselves in the streets of Bungendore in South West NSW.

Reports suggest that the cocaine was meant to be distributed into Canberra, South Coast and the Snowy Mountains areas.

The ACT Chief Police Officer Ray Johnston said: “I suspect this is not an insignificant hit to the syndicate; $144 million is a lot of income”.

The success of this bust was significantly contributed by the interception made by the ACT Police who had strategically and discretely managed the raid following months of surveillance of a local criminal syndicate.

Other contributors to its success included the NSW Police, Australian Federal Police National Anti-Gangs Squad, and Australian Border Force.

The steel arm of the machinery was subsequently cut open before filling it with fake materials to replicate the packaged cocaine originally found. The cut was then closed and repainted to make it look like it had not been compromised.

This was done in an effort to execute a controlled operation by authorities, who allowed the machinery to then be transported to its intended destination in Bungendore were the police authorities were patiently waiting.

34-year old Timothy John Engstrom and 35-year old Adam Phillip Hunter from Queanbeyan were arrested and appeared before the Local Court Magistrate at the Queanbeyan Local Court on Monday 15 July 2019 for charges of importing commercial quantity of border-controlled drugs.

Both accused were formally refused bail, scheduled to next appear in the Local Court on 9 September.

Table Of Contents

What is the Law on Importing a Border Controlled Drug in Australia?

What is the Law on Importing a Border Controlled Drug in Australia?

It’s important to know the various categories, also known as quantities, that certain illicit drugs are classified under. This is due to the fact that the quantity and type of the drug determines the maximum penalty in court.

It is a crime in Australia to import a ‘border-controlled drug’. A border controlled drug is includes cocaine, heroin, MDMA, Cannabis and is reflected in clause 1, schedule 2 of the Criminal Code Regulation 2019 (Cth).

Methamphetamine’s marketable quantity is 250g or more, while its commercial quantity is 750g or more.

Cocaine’s marketable quantity is 250g or more, while its commercial quantity is 2kg or more.

Heroin’s marketable quantity is 250g or more, while its commercial quantity is 1.5kg or more.

MDMA’s marketable quantity is 100g or more, while its commercial quantity is 500g or more.

Methamphetamine’s marketable quantity is 250g or more, while its commercial quantity is 750g or more.

Cannabis’s marketable quantity is 25kg or more, while its commercial quantity is125kg or more.

GHB’s marketable quantity is 250g or more, while its commercial quantity is 1kg or more.

Importantly, once you have these figures in mind, the law attributes different maximum penalties accordingly.

There is a maximum penalty of 25-years prison and/or $1,050,000 for importing a ‘marketable quantity’ of a border-controlled drug under section 307.2 Criminal Code Act 1995 (Cth).

There is a maximum penalty of life in prison and/or $1,575,000 fine for importing a ‘commercial quantity’ of a border-controlled drug under section 307.1 Criminal Code Act 1995 (Clth).

In the case of importing any quantity other than a marketable or commercial quantity, the maximum penalty under the law in Australia is 10-years imprisonment and/or $420,000 fine under section 307.3 Criminal Code Act 1995 (Cth).

Under the law, a drug is considered to be ‘imported’ where it arrives in Australia from another country, where it is then delivered to a destination therein to remain within Australia.

The law does not attributed guilt to a person charged with importing drugs, if that person didn’t know or wasn’t aware that the package contained in it a ‘border-controlled drug’ at the time it’s imported into Australia (Keung v R (2008) 191 A Crim 317).

The prosecution in order to prove that the accused person knew it was a border-controlled drug is required to prove beyond reasonable doubt, that he/she was aware of ‘a substantial risk’ that it was a ‘border-controlled drug’.

It isn’t necessary that the accused person be aware of which specific border-controlled drug it is, so long as he/she was aware of a substantial risk that it was any border-controlled drug.

There is also the separate offence carrying a maximum penalty of 2-years prison and/or $84,000 fine if an accused person imports a ‘marketable quantity’ or a quantity which doesn’t fall in the commercial quantity of a border controlled drug, and he/she didn’t intend to sell the drug and didn’t believe that anyone else intended to sell it. (section 307.4 Criminal Code Act 1995 (Cth)).

What is the Prosecution Required to Prove in Court?

To be guilty of importing a border-controlled drug, the prosecution is required to prove, through evidence, each of the following elements in court beyond reasonable doubt:

The accused person imported a substance; and
The accused person intended to do this; and
The substance is a ‘border-controlled drug’; and
The accused person realised that there was a significant or real chance that the substance or package being imported was a border-controlled drug at the time it was imported; and
In the circumstances of the case and known to the accused person, it can be said that it was not justifiable for him/her to take the risk of still importing it; and
The accused person took that risk anyway

What are the Defences to Importing Drugs?

Some of the defences to the charge of importing drugs include:

If the accused person believed as a mere possibility that the substance was a border-controlled drug.
If the accused person did not intend to import the substance.
If the accused person did not actually import the substance.
If the accused person acted under a necessity or duress.
If the alleged drug is not in fact a border-controlled type of drug.
Where the court can accept of there being a reasonable possibility that the accused person wasn’t aware that the substance in question was a border-controlled drug.

Possessing an border-controlled drug that is imported from another country also carries heavy penalties in Australia.

Click here for an outline on the penalties and defences to the offence of possessing an imported border controlled drug in Australia.

Contact our office if you wish to discuss this topic further.

We have specialist drug defence lawyers in Sydney and seven other convenient locations to provide a free first appointment for advice and guidance. Call us 24/7 on (02) 8606 2218.

Published on 22/07/2019