Import-export border-controlled drugs or plants – Division 307 of the Criminal Code Act 1995 (Cth)

The maximum penalty is determined by the quantity of the border-controlled drug imported to or exported from Australia.

Marketable and commercial quantities of border-controlled drugs are located in Schedule 4 of the Criminal Code Regulations 2002

This option is recommended only where you accept that:

• you imported or exported a border-controlled substance; and
• you knew or were reckless as to whether the substance was a border-controlled drug or border-controlled plant.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A fine
  • This varies depending on the quantity of the border controlled drug imported or exported.
• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option (when aggravating circumstances Examples of aggravating circumstances include a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

NB: Most people convicted of this offence receive a sentence of full-time imprisonment.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• you imported or exported a border-controlled substance; and
• you knew or were reckless as to whether the substance was a border-controlled drug or border-controlled plant.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• You neither intended nor believed that another person intended to sell any border-controlled drugs, plants or products.
  • This does not apply when a person has been charged with a commercial quantity of the drug.
• You did not know or suspect (recklessness) that a border-controlled drug or plant was being imported or exported.
• You did not import or export a border-controlled substance.
  • This may be a case of mistaken identity.
• The pure quantity of the drug is less than the alleged quantity of the drug.
  • Under Commonwealth laws, the quantity of the drug is determined by the pure quantity of the drug; whereas under state laws, the quantity of the drug is determined by its gross weight, including additives.
• Duress
  • You were threatened or intimidated into importing or exporting border-controlled drugs.

* For the purposes of this section, a ‘defence’ is listed as that which the prosecution cannot prove.