Drug Supply & Importation Charges

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Below is everything you need to know about drug charges, penalties and defences for drug supply, drug supply on ongoing basis, drug importation and possessing an imported drug.

Serious Drug Offence Charges

Drug Supply Charges in NSW

It’s a crime to supply prohibited drugs in NSW, which carries heavy criminal punishments under section 25(1) Drug Misuse and Trafficking Act (1985) NSW.

Supplying includes, giving for free, selling, distributing, agreeing to supply, offering to supply, keeping Drugs in your possession (https://www.criminaldefencelawyers.com.au/criminal-law/offences/drug-lawyers-sydney/drug-possession/) for supply, sending, delivering, receiving the drug for supply, or allowing any of those acts.

A prohibited drug is any of the substances listed in schedule 1 of the Drug Misuse and Trafficking Act and includes MDMA/Ecstasy, Cocaine, Heroin, Methylamphetamine, Lysergic Acid, Amphetamine.

A prohibited plant includes cannabis plant, whether or not it is by enhanced indoor means or any other means.

Deemed Drug Supply NSW

Deemed supply is where you are presumed to have possession of a prohibited drug for the purpose of supplying it if you’re caught with possession of at least the ‘traffickable’ quantity of it.

The ‘traffickable quantity’ reflects the weight category of the drug which may be different for different prohibited drugs. The below table outlines this.

To defend a deemed supply charge, you will be required to prove on the balance of probabilities that you had possession of the drug for a reason other than to supply it, such as personal use. Our Specialist Drug Lawyers (https://www.criminaldefencelawyers.com.au/criminal-law/offences/drug-lawyers-sydney/) can effortlessly provide you with the right advice and information.

Drug Supply on Ongoing Basis Charges in NSW

It is a crime in NSW to supply a prohibited drug on at least 3 separate occasions over a 30-day period for the purposes of gaining a financial or material reward.

Section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) prescribe the maximum penalties for drug supply on an ongoing basis charge.

Drug Importation Charges in NSW

Importing drugs is when a person arranges and organises for a ‘border-controlled drug’ to be brought into Australia from another country.

The act of exporting ‘border-controlled drugs’ is organising for and sending the substance to another country for sale.

There are heavy penalties for exporting or importing drugs in Australia under sections 307.1, 307.2 and 307.3 of the Criminal Code (Cth).

Courts take this offence very seriously, which is why it is critical to get guidance and advice as early as possible from an experienced team of criminal defence lawyers.

What is a ‘Border-Controlled Drug’?

A ‘border-controlled drug’ is outlined in schedule 4 of the Criminal Code Regulation 2002 (Clth).

Examples of this include, cannabis, cocaine, GHB, heroin, and MDMA.

What Does ‘Import’ Mean?

‘Import’ is when the ‘border-controlled drug’ arrives into Australia from abroad, and then delivered somewhere, where it ends up remaining within Australia.

Possessing Imported Drug Charges in NSW

This is where you knowingly ‘possess’ a ‘border-controlled drug’ (https://www.criminaldefencelawyers.com.au/blog/what-are-the-defences-and-penalties-for-importing-drugs-in-australia/) in circumstances the drugs were unlawfully imported into Australia. The police do not need to prove that you imported it.

‘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- when they have difficulty in proving that you imported drugs.

Our senior drug lawyers are the leading specialists in drug cases, they can guide you through various defences and provide you with the right information. Call us now on experienced Drug Defence Lawyer. (https://www.criminaldefencelawyers.com.au/criminal-law/offences/drug-lawyers-sydney/)

PENALTIES & SENTENCING GUIDELINES

Types of Penalties a Court Can Impose for Drug Charges in NSW

A Judge or Magistrate may impose any one of the below kinds of sentencing penalties for a drug offence:

  1. Section 10 Dismissal (non-conviction)
  2. Conditional Release Order with or without conviction
  3. Fine with conviction
  4. Community Correction Order with conviction
  5. Intensive Correction Order with conviction
  6. Full-Time Imprisonment with conviction

Drug Supply Penalties in NSW

The penalties for drug supply offences in NSW, across all drug supply cases depends on the weight/quantity of the drug and whether it gets finalised in the Local or District Court.

The maximum penalties range from 2 years to life in jail and/or up to $220,000 fine. The maximum penalty is rarely given by a Judge as it’s reserved for the most serious offenders.

The below table outlines the maximum penalties dependant on the quantity of the drug- from a commercial drug supply penalty, large commercial drug supply maximum penalty to all other types of penalties for supplying illegal drugs.

Maximum Penalties for Drug Supply

Quantity If Local Court If District Court
Small Quantity 2 years imprisonment and/or $5,500 fine 15 years imprisonment or $220,000 fine
More than Small Quantity but less than Indictable Quantity 2 years imprisonment and/or $11,000 fine 15 years imprisonment and/or $220,000 fine
Indictable Quantity 2 years imprisonment and/or $11,000 fine 15 years imprisonment and/or $220,000 fine
Commercial Quantity Cannot be dealt with in Local Court 20 years imprisonment and/or $385,000 fine
Large Commercial Quantity Cannot be dealt with in Local Court Life imprisonment and/or $550,000 fine

Drug Weight Categories for Drug Supply

Prohibited Plant/Drug Small Qty. Traffickable Qty. Indictable Qty. Commercial Qty. Large Commercial Qty.
Amphetamine 1 g 3.0 g 5 g 250.0 g 1 kg
Cannabis Leaf 30 g 300 g 1000 g 25.0 g 100 g
Cannabis Oil 2 g 5 g 10 g 500.0 g 2 kg
Cannabis Resin 5 g 30 g 90 g 2.5 Kg 10 Kg
Cannabis Plant Cultivated by Enhanced Indoor 5 50 50 200
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

Drug Supply Sentencing Guidelines NSW

Every drug supply case is different. The sentence for each case can therefore be different depending on the level of seriousness of the drug supply offence. The less serious it is, the lighter the sentence will be.

In determining how serious the drug supply offence is, to work out an appropriate sentence, the Judge or Magistrate will look at the below factors:

Supply Drugs Sentencing Guidelines NSW

Quantity and purity of the drug You will likely receive a more lenient penalty if the quantity and purity of the drugs are low. Off-course, you will likely receive a harsher sentence if the quantity and purity are high. But the quantity of the drug is not the sole determinant factor on the ultimate sentence imposed. The court will be more interested in the role and level of participation of the offender. This was outlined in the case of R v Shi [2005] NSWCCA 135.
Role and level of participation The lower your role and extent of participation in the drug supply offence is, the more lenient the sentence will likely be. For example, the sentence will likely be more lenient to an offender who played the role of a courier or storeman, rather than a principal in the offence. The penalty will also be lower where the drug supply offence involved limited planning and premeditation.
‘Trafficking or supplying to a substantial degree’ Includes, high degree of planning months in advance, organising international flights, booking hotel rooms, contacting co-offenders, using coded telephone conversations and high level of sophistication in concealing the drugs.
Your vulnerability to drugs Where there is a vulnerability that contributed to you supplying drugs, the Judge or Magistrate will likely impose a more lenient sentence. Vulnerabilities can include, your age, drug addiction, or your background. This was expressed in the case of R v Shi [2004] NSWCCA 135.
Your drug addiction Your ultimate sentence can be significantly reduced if you supplied drugs to feed your drug addiction ‘out of a need’ rather than greed (to make a profit). Drug supply offenders who supply drugs to make a profit will be treated with heavier sentences. This was outlined in the case of Nguyen v R [2007] NSWCCA 15.
Subjective or Personal Factors A lighter penalty is generally attracted to someone who genuinely expresses remorse, insight into the offence, provides a compelling explanation for committing the offence, mental condition or other vulnerability contributing to the offence, including drug habit, good prospects of rehabilitation, good character, and absence of previous criminal history.

The previously known general rule where courts were required to send a drug supplier to full time jail if he/she is found supplying to a ‘substantial degree’ has now been abolished by the new decision of Parente v R [2017[ NSWCCA 284.

The NSW Supreme Court of the Court of Criminal Appeal in Parente’s case (https://www.criminaldefencelawyers.com.au/blog/should-australia-follow-portugals-policy-of-decriminalising-drug-possession/) says that a drug supply offender who supplies or trafficks drugs to a ‘substantial degree’ is not necessarily required to get a full-time jail term sentence.

This means, that a person guilty of supplying drugs to a ‘substantial degree’ can now avoid a sentence of full-time imprisonment, instead he/she can receive an alternative to full-time jail sentence, such as an intensive corrections order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/intensive-correction-order/).

Drug Supply On Ongoing Basis Penalties

Supplying prohibited drugs on an ‘ongoing basis’ in NSW has a maximum penalty of 20-years imprisonment and/or $385,000 fine.

The maximum penalties are not usually imposed by a Judge unless the case is categorised as the most serious of its kind in Australia.

Drug Importation Penalties

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.

Maximum Penalties for Drug Importation

Qty. 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.

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.

Weight categories of Border Controlled Drugs:

MDMA/
Ecstacy
Cocaine Cannabis Heroin Methamph-
etamine
GHB
Marketable Q 0.5g or more 2g or more 25kg or more 2g or more 2g or more 2g or more
Commercial Q 500g or more 2kg or more 100kg or more 1.5kg or more 750g or more 1kg or more

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 in.

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

  • High degree of involvement and responsibility
  • Mastermind or principal in organising
  • High quantity of drugs (tens or hundreds of kg’s)
  • High street value of drugs (tens of millions of dollars)
  • Significant monetary reward (hundreds of thousands of dollars)
  • No remorse and no assistance to police
  • Plea of Not Guilty entered in half of cases
Group 2: 

18 to 24.5 years imprisonment

 

With 10 to 16 years non-parole period

  • Principal, or played an essential or vital role in the importation with moderate to very high level of responsibility, or member of the upper management.
  • Guilty plea entered
  • High quantity of drugs
  • High street value of drugs
  • Substantial monetary reward
Group 3: 

 8 to 15 years imprisonment

 

With 4 to 11 years non-parole period

  • Mid-level role between that of a principal and courier
  • Quantity of drug is generally below 7kg
  • Discount on sentence for giving assistance to police
  • Plea of guilty not entered straight away
  • Cooperation
Group 4: 

6.25 to 8 years imprisonment

 

With 3 to 4.5 years non-parole period

  • Quantity of drugs not indicative
  • Plea of guilty not entered straight away, but discount provided for early plea
  • Role not indicative – although general involvement in syndicate
  • No prior criminal record
  • Good antecedents

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

  • Well above marketable/trafficable quantity
  • Role is of a mere courier with more responsibility or played part in planning
  • Financial Reward in the thousands of dollars
  • Discount on sentence for assistance to police
Group 2: 

6 to 9 years imprisonment

 

With 3 to 5 years non-parole period

  • Discount on sentence for providing assistance to police
  • Financial reward or anticipated reward in the thousands of dollars
  • Role was of a courier or low-level importer
  • Nature and timing of entering the plea of guilty
Group 3: 

3.75 to 6 years imprisonment

 

With 2 to 4.25 years non-parole period

  • Quantity of drugs is towards the lower end of the marketable/trafficable quantity
  • Role was a mere courier
  • Financial reward/expected financial reward was in the thousands of dollars, or it was done to relieve a debt
  • Discount on sentence for entering an early plea of guilty
  • Offender has a drug addiction with limited financial capacity, physical or mental health issues, and family issues

Penalties for Possessing Imported Drugs

The maximum penalties for possessing unlawfully imported border-controlled drugs in Australia depends on the weight/quantity category of the drug.

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 seizure usually includes the packaging and admixtures which is not relevant. It’s the quantity of the pure drug that the Judge will place significance on.

Weight Categories of Border Controlled Drugs:

MDMA/
Ecstacy
Cocaine Cannabis Heroin Methamph-
etamine
Amphet-
amine
LSD GHB
Marketable Q 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 Q 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

Drug Supply Section 10 Non-Conviction Sentence

A section 10 non-conviction or Conditional Release Order without conviction for drug supply are types of punishments that results in no criminal conviction, even after pleading guilty in court.

There’s never a guarantee of getting this type of outcome, but you can maximise your chances of getting it by being well prepared with strong persuasive submissions to present in court.

The following are some factors that can increase your chances at getting a section 10 on your sentence for drug supply:

  • You express remorse and insight in your offending conduct
  • You have expressed, through medical reports, excellent prospects of rehabilitation which can convince the Judge you are unlikely to re-offend
  • You are of otherwise good character. This can be expressed in character reference letters
  • There was no substantial harm or loss caused about from your conduct
  • You have limited, or no prior criminal record
  • Your young age and background

WHAT ARE THE DEFENCES

Defences to Drug Supply NSW

You will be found ‘not guilty’ to supplying drugs if:

  • You didn’t know that the drug was where it was found.
  • You held on to the drugs for the person you intended to return it back to.
  • When supplying it, you had no intention to pass the substance off as a prohibited drug.
  • Where you are charged for deemed supply, you had possession of the drug for personal use, or a use other than to supply.
  • Where police discovered the drug following an illegal search or arrest.
  • Where the drug was found in a common area, and police cannot exclude the reasonable possibility that it was someone else’s who has access to that area.
  • You acted under Duress or Necessity.
  • For charges of ‘taking part in supply’, you will be not guilty if:
    • You didn’t do anything to cause steps to be taken in the supply process.
    • You didn’t make any arrangements or give finance for the supply.
    • You didn’t permit the premises to be used for the supply process.
    • You did not contemplate on supplying, nor did any supply take place.

Defences to Drug Supply on ‘Ongoing Basis’ NSW

You will be found ‘not guilty’ to supplying drugs on ongoing basis if:

  • Your actions did not amount to ‘supply’ under the law
  • You did not intend to pass the substance off as a prohibited drug
  • There were less than 3 supplies over a consecutive 30-day time period
  • The 3 supplies alleged by the police occurred over a period of more than 30 consecutive days
  • You did not gain financial or material reward for any one or more of the 3 occasions of supply
  • You supplied the drug for the purpose of a study, scientific research, analysis or instruction under the authority granted by the Director-General of the Department of Health
  • You possessed a licence or authorisation to supply the drug under the Poisons and Therapeutic Goods Act 1966
  • Duress or Necessity

Defences to Drug Importation

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 drug didn’t arrive and 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.

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. 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.

Your Options in Court

PLEADING NOT GUILTY

After pleading ‘not guilty’ in court to a charge of drug supply, drug importation or possession of border-controlled drug, your case will eventually get adjourned to a defended hearing in the Local Court or Trial in the District Court.

After all the evidence is heard on the hearing or trial, the court will determine your verdict of ‘not guilty’ or ‘guilty’ to the charge.

If you’re found ‘not guilty’, the charge will be dismissed.

If you’re found ‘guilty’, the Magistrate or Judge will sentence you in court.

You’ll be ‘guilty’ of a drug charge if the prosecution proves each elements of the charge beyond reasonable doubt, as follows:

What the Police Must Prove for a Drug Supply Charge:

  1. You supplied a prohibited drug; or
  2. You ‘took part’ in supplying a prohibited drug.

What the Police Must Prove  for Drug Supply on Ongoing Basis Charge:

  1. You  supplied a prohibited drug (https://www.criminaldefencelawyers.com.au/criminal-law/offences/drug-lawyers-sydney/drug-supply-drug-importation-charges/); and
  2. You did that on 3 or more separate occasions within a 30-day period; and
  3. You did this for the purpose of obtaining financial or material reward.

What the Police Must Prove  for Importing Drugs or Exporting Drugs:

  1. You imported a substance; and
  2. You intended to import that substance; and
  3. That substance is a ‘border-controlled drug’; and
  4. 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
  5. 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
  6. You took that risk, of importing the substance.

What Police Must Prove  for Possessing Imported Border-Controlled Drugs Charge:

  1. You possessed a ‘border-controlled drug’- in the sense that you knew of its existence while having exclusive custody or control of it; and
  2. The drugs were imported unlawfully into Australia; and
  3. You either knew it was, or you were aware of the substantial risk that it was a ‘border-controlled drug’; and
  4. The weight of the drug falls into one of the categories of ‘commercial’, ‘marketable’ or any other weight you are charged with.

You’ll be ‘not guilty’ to any of the above charges if the prosecution fails to prove any element of the charge.

Occasionally, to prove that you knew of the existence of the drug the prosecution will try to produce circumstantial evidence (from surrounding circumstances) to convince the court to draw an inference that you either knew or believed that there was a real chance as to knowledge of the drug from where it was found.

For example, to prove you knew the drug was there, knowledge can be inferred by the court if the drug was found in your pocket or luggage.

To defend this, you may need to prove that you didn’t know of its existence there, in order to displace such an inference.

Getting Drug Charges Dropped or Downgraded Early

It’s often useful and worth negotiating with the prosecution to either drop or downgrade a drug supply or importation charge early in the proceedings- saving legal fees and stresses of court.

The formal way to go about this is to have an experienced drug lawyer draft and send ‘legal representations’ to the Director of Public Prosecutions (DPP) outlining the holes in their case and other reasons why they should drop or downgrade the drug charge.

PLEADING GUILTY

If you decide to plead guilty to a charge of drug supply, ongoing supply, drug importation or possession of a border-controlled drug, make sure you get experienced legal advice from a lawyer who specialises in drug law as early as possible.

Early legal advice from an experienced drug lawyer can best prepare you for your drug sentence, and it will maximise your chances of avoiding a criminal conviction & prison.

The below is a guide on how you may begin best preparing for a drug sentence:

25% Discount on Penalty

Your sentence for your drug offence will be reduced by 25% simply by pleading guilty at an early enough stage in the case.

That discount gets smaller the later a plea is entered in court.

Good Character Reference Letters

Preparing strong persuasive good character letters for court in drug charges can convince the Judge to further reduce your sentence.

It can increase your chances of avoiding jail and/or getting a s10 non-conviction.

For best possible results, the referees should be carefully chosen, and the letters should outline the main points of your case, including expressions of your remorse, insight, and the impact a drug conviction will have on your job and family.

Your referees can include a family member, friend, employer, partner, charity or religious group.

Letter of Apology

A well drafted apology letter for your drug sentence can also convince the Judge to further reduce your sentence.

The apology letter should be drafted by the person being sentenced, signed and dated for the Judge to read in court during sentence.

The letter can outline expressions of remorse, insight into drug offences, personal circumstances and more.

Negotiate to drop charges

Having successfully convinced the prosecution to withdraw and drop serious drug charges countless times for over two decades, our lawyers are well trained and experienced in identifying when and how this can be done.

If your case has a strong defence, or if there are enough holes in the police evidence, an experienced drug lawyer may be able to convince the prosecution to drop the drug charge earlier.

Your lawyer may do this by drafting and sending a document referred to as ‘legal representations’ to the prosecution, outlining the holes in their evidence. This should be done before entering a plea of guilty.

In some cases, it may not be appropriate to outline all weaknesses in their evidence so that you can preserve the strength of the defence case.

Negotiate to change the police facts

In some drug cases, you may be able to also negotiate to get the ‘facts sheet’ changed to be more accurate and favourable to your case- this can significantly improve your sentence outcome.

The facts sheet is the document outlining the who, what, when and how of your drug offence that the Judge reads during the sentence proceedings before imposing a penalty.

Psychologist Reports

If there appear to be some mental health issues that may have contributed to committing the drug offence, it’s highly recommended to obtain a thorough expert psychologist or psychiatrist report for the Judge to read during sentence.

A well drafted report like this can significantly improve your sentence result.

The report may comment on important points the court will take into account, such as a diagnosis of mental illness, connection between the drug offence and mental condition, genuine remorse and insight, and a thorough treatment plan.

Why Choose Us? 

With over 20-years’ experience, we are a team of Australia’s leading criminal defence lawyers who specialise in drug law. We have achieved success across all complex drug cases with outstanding results. This includes:

  • Section 10 non-conviction outcomes.
  • Securing not guilty verdicts for serious drug charges.
  • Negotiating with police to get serious drug charges dropped early.
  • Avoiding full-time imprisonment for serious drug offences.

FAQ

Can I Still be Guilty of Importing Drugs if I Didn’t Know Which Drug was in the Package?

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.

For Drug Importation Charges: How Can the Prosecution Prove that I Had Knowledge that a ‘Border-Controlled Drug’ Was in the Package?

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.

For Possessing Imported Drugs: Can I be charged without physically possessing the drug? 

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.

Can I still be guilty if I was not involved in the importation of the drug? 

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. 

an I still be guilty of possessing unlawfully imported drugs if I didn’t know which drug was in the package?

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. 

How can the prosecution prove that I had knowledge that a ‘border-controlled drug’ was 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.

What is a ‘parole’ and ‘non-parole’ period? 

When a Judge imposes a sentence of full-time imprisonment of more than 6 months, the Judge is required under the law to give you a ‘non-parole’, and ‘parole’ period.

The ‘non-parole period’ of a sentence of imprisonment is the period of time you must spend behind bars, in jail.

The ‘parole period’ is the period you may be released from jail on parole, on conditions while still finishing the rest of your sentence in the community.

The period of non-parole a Judge imposes will depend on each case. The Judge is guided by the “standard non-parole period” which applies to certain offences, which is used by a Judge as a guide in determining an appropriate sentence for an offender.

What is the ‘standard’ non-parole period?

Some charges and weights of drugs carry a “standard non-parole period”. This means that a standard non-parole period drug offence carries a prescribed standard period an offender is required to spend in full-time jail before being eligible for release on parole.

Do not panic, because the standard non-parole period is not mandatory for a Judge to apply. The Judge usually uses this as a guide only, or may not even use it at all, depending on the case.

The standard non-parole period for a drug supply offence gets engaged for a Judge to use only as a guide (not mandatory) if the offence is considered to fall in the middle range of objective seriousness for drug supply offences. To determine if the offence falls in the middle range of objective seriousness, the court will consider the factors outlined earlier on this page

Does the standard non-parole period apply to your drug supply offence? 

If your drug weight is more than the commercial quantity but less than the large commercial quantity, then the standard non-parole is 10 years imprisonment. 

If your drug weight is more than the large commercial quantity, then the standard non-parole period is 15 years imprisonment. 

The standard non-parole period applies to you if the weight of your drug offence is either the commercial quantity, or more than the commercial quantity.  

The standard non-parole period offences are outlined in the table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999. 

For Drug Supply on Ongoing Basis: What if I supplied a different prohibited drug on some or each occasion? 

According to section 25A(2) of the Drug Misuse and Trafficking Act 1985 (NSW), it does not matter if the type of prohibited drug differed on each occasion.

The police are only required to prove that the supply of any prohibited drug occurred on 3 or more occasions within a 30-day period.

Double Jeopardy: Can I be charged for each of the separate offences of supply drugs on an ‘ongoing basis’, and supply drugs? 

A person who is convicted of an offence of supply on ongoing basis cannot additionally be charged with the separate supply of those drugs on the same or substantially same facts. This is called double jeopardy and is in place to prevent a person from being punished twice for the same charges on the same set of facts.

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