What is the offence of Importing a border controlled drug?
The offence of Importing a border controlled drug is found at section 307 of the Commonwealth Criminal Code 1995.
Importing a border controlled drug is an offence that can be established by evidence of you actually importing a drug (e.g. witness evidence, phone intercepts and text messages). Common examples of where a person’s prospects of successfully defending the charge are increased include where the prosecution is reliant on the testimony of one witness or co-Accused members of a syndicate who have turned informant, where identification evidence (visual and voice) is disputed, and where phone taps or text messages are open to interpretation.
If you are charged with the offence of Importing a border controlled drug, your options will normally be to plead guilty or not guilty.
Pleading not guilty
You will be found not guilty of the offence of Importing a border controlled drug if the police cannot prove beyond reasonable doubt:
- You imported or exported a substance (and intended to do so); and
- The substance is a border controlled drug or border controlled plant; and
- The weight of the border controlled drug or border controlled plant.
Import includes to bring the substance into Australia and deal with the substance in connection with its importation. An import requires border controlled drugs and precursors to arrive in Australia from abroad and to be delivered at a point which resulted in the goods remaining in Australia. That may occur when the goods pass through customs or are picked up by an offender (or their agent) or when the goods arrived at their intended location (for example a home).
What are conspiracy and joint provisions?
It is often the case that in large drug importation matters, the Crown relies on the conspiracy provisions in the Commonwealth Criminal Code. This may be where there is evidence of an agreement to import a border controlled drug into the country, and that agreement involves a number of individuals who entered into an agreement and intended that an importation would be committed pursuant to that agreement.
When the Crown relies on the conspiracy provisions, it is not necessary for there to be any evidence of an actual importation, although that is obviously strong evidence of an agreement.
What are the defences to Importing a border controlled drug?
The prosecution must 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. If a person inadvertently imported the substance under a misapprehension (that was reasonable) about what it was, then they will be not guilty.
If the police are able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established.
- Lack of commercial intention. This requires the accused to prove on the balance of probabilities that you neither intended to sell any of the drugs, nor believed that another person intended to sell any of the drugs.
- Evidence was improperly or illegally obtained
Contact our offices at Sydney, Parramatta, Blacktown and Redfern to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of Importing a border controlled drug.
Why is weight of drug so important in importation cases?
The weight of the drugs in Importing a border controlled drug cases is vital as it determines the section of the act under which you will be charged as well as the maximum penalty. The table below lists weights and applicable penalties.
Marketable quantity (grams)
Commercial quantity (kilograms)
|30||Cannabinoids (other than a cannabinoid of a kind that can be obtained from a plant that is not a cannabis plant)||2.0||2.0|
|31||Cannabis (in any form, including flowering or fruiting tops, leaves, seeds or stalks, but not including cannabis resin or cannabis fibre)||25,000.0||100.0|
|81||4-Hydroxybutanoic acid (GHB)||2.0||1.0|
If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.
Importation offences almost always carry a term of imprisonment. In determining the appropriate sentence the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. For example were you the mastermind or mule? If your importation forms part of a wider syndicate the court will consider where you fall in the drug hierarchy, with those at the lower end given the more lenient sentences. Weight of the drug imported is not the principal factor to be considered when fixing sentence but the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
The maximum penalties for the offence of Importing a border controlled drug depends on the weight and type of drug. The maximum penalty for importing or exporting a commercial quantity of border controlled drugs/plants is life imprisonment. The maximum penalty for importing or exporting a marketable quantity of border controlled drugs/plants is 25 years imprisonment.
The maximum penalty for importing or exporting border controlled drugs/plants of any other weight is 10 years imprisonment. Whilst these penalties are typically reserved for the worst offenders, importing offences are extremely serious and if you are charged with one of these offences you should contact our office immediately.
Penalties that a court can impose in NSW are:
- Section 10 – No conviction recorded
- Section 9 – Good behaviour bond
- Community service order
- Section 12 – Suspended sentence
- Intensive correction order
- Home detention
- Full time imprisonment
Why choose AC Law Group?
Our solicitors are experts at obtaining the best outcome possible for Importation offences. For these offences, a good lawyer can be the difference between freedom or gaol. To read more about AC Law Group, click here.
To discuss your Importation charge, call AC Law Group at our Sydney, Parramatta, Blacktown and Redfern offices or make a website inquiry today.
AC Law Group represented a woman charged with importing a commercial quantity of methylamphetamine. The Crown was relying on subsequent conduct she admitted to infer guilt for her acts in relation the importation of the methylamphetamine. Our solicitor was successful in having the evidence of her subsequent conduct excluded and the charge of importing a commercial quantity of methylamphetamine was doomed to fail.