This is a Federal offence under, Schedule 1, Regulation 307 of the Criminal Code 1995 (Cth).

 

THE LAW

Regulation 307.3 states: “A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border-controlled drug or border-controlled plant.”

Regulation 307.2 uses the same wording as above but provides for the aggravated offence of importing or exporting a marketable quantity of that drug or plant.

Regulation 307.1 provides for the aggravated offence of importing or exporting a commercial quantity of that drug or plant.

The term “import” is defined in the Criminal Code as importing a substance into Australia and includes bringing the substance into Australia; and dealing with the substance in connection with its importation.  This is a new definition and was inserted into the Commonwealth Criminal Code in January 2011 following the decision of Campbell v Regina (2008) 73 NSWLR 272.

 

 

Maximum/Possible Penalties

Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled drugs without a lack of commercial intent, Section 307.4.  That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).

The following table provides information in relation to the relevant marketable and commercial quantities of some border-controlled drugs:

Quantity	Cocaine	Methamphetamine	Ecstasy	Heroin	Maximum Penalty
Marketable	2 gms	2 gms	0.5 gms	2 gms	25 years imprisonment and/or a fine of 5000 penalty units
Commercial	2 kgs	0.75 kgs	0.5 kgs	1.5 kgs	life imprisonment and/or a fine of 7500 penalty units

 

NO COMMERCIAL INTENT

Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled drugs without a lack of commercial intent, Section 307.4.  That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).

In NSW, a court can impose any of the following penalties:

• Full-time Imprisonment;
• An Intensive Correction Order (ICO);
• A Community Correction Order (CCO);
• A Conditional Release Order (CRO)

 

THE FACTS THAT MUST BE PROVEN

Since Drug importation/exportation offence is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove each of the elements in the charge beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Drug importation/exportation.

To establish Drug importation/exportation, the prosecution must prove each of the following matters beyond reasonable doubt;

• The substance imported is a border-controlled drug, and the person was reckless as to that fact
• The quantity was above the commercial or marketable quantity, as the case may be
• That a person imported a substance into Australia, and imported that substance intentionally

 

Defences

Some of the possible defences available for those charged with Drug importation/exportation can include;

As this is a Commonwealth criminal offence, the provisions of Part 2.3 of the Commonwealth Criminal Code apply in relation to circumstances in which there is no criminal responsibility.  Specifically, in relation to drug offences, defences of duress under Section 10.2 apply.  In this regard, it is noted that what must be established is 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.

In the context of a drug importation, the conduct referred to would be the importation of drugs.

It should also be noted that it is required that the prosecution establish that a person had the necessary mental element when committing the offence of drug importation.  Specifically, that they intended to import a substance, and were reckless as to the substance being a boarded controlled drug. 

There must be sufficient evidence to prove the requisite mental or fault element.

For offences involving less than a commercial quantity, there is a defence open if it can establish that they neither intended, nor believed, that another person intended to sell the border-controlled drug.  This is referred to as a “lack of any commercial intent”.  That defence does not apply when the quantity is a commercial quantity.

Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled drugs without a lack of commercial intent, Section 307.4.  That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).

As such;

• If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue "Duress";
• If your actions were necessary to prevent a greater harm from occurring, you may have the defence of "Necessity".

 

CHOICES AT LAW OPTIONS

For Drug Importation/Exportation, Rep-Revive Criminal Lawyers® offers the following options:

1. We initiate negotiation with prosecutors (police) (a term referred to as “plea negotiations”) and plead to withdrawal or downgrade of the charge or alternatively, seek amendments to the police fact sheets or documents.
2. At the hearing/trial, Rep-Revive Criminal Lawyers® shall if you so instruct Plead Not Guilty and drive the argument based on prosecution’s inability to prove the elements of their accusation.
3. Alternatively, Rep-Revive Criminal Lawyers® may plead guilty on your instructions however, the hearing shall revolve around the facts with an objective to obtain a moderate or minimum punishment.
4. Lastly, Rep-Revive Criminal Lawyers® on your instructions enter a plea of guilt where you accept all the charges pressed by the police, but we present a case so solid on your behalf, with an objective to persuade and convince the Court to not record a criminal conviction against you.

For further information on your choices at law click on (CHOICES AT LAW tab on our website)

 

WHY REP-REVIVE CRIMINAL LAWYERS®

There are several reasons to engage Rep-Revive Criminal Lawyers®:

•  We are always in your corner

At Rep-Revive Criminal Lawyers® we understand the gravity of a criminal charge on your reputation. Thus, we work with the utmost diligence and fervour to restore any dints to our client’s repute. We fight for your rights and liberty earnestly, and for the best results, irrespective of the intensity of the matter. All these factors have made us known in the industry as always being in our client’s corner. 

•  We bring about excellent results

Rep-Revive Criminal Lawyers® is driven by positive outcomes and defend your case with skills which have been sharpened by years of experience. You will be dealing with lawyers who are proficient at their craft and will defend your case with rigour and an aim to have the matter withdrawn, downgraded, dismissed or the minimal penalty available at law imposed.

Rep-Revive Criminal Lawyers® are adept in all forms of advocacy and will present your case in the most skilful manner in Court. 

• Your case will be in the hands of an experienced lawyer

Irrespective of your decision in deciding the course of the case, you will be supported and guided by Rep-Revive Criminal Lawyers® who have been in the provision of legal service for over 21 years. 

If you are charged with an offence, our team at Rep-Revive Criminal Lawyers® are best suited for representing your case.

Please contact our office on 0419 998 398 or 0492 857 721 or email info@rpr5.sydney for more information. The first consultation is free.