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Importing or exporting a border controlled drug or plant

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In Australia, the importation and exportation of border controlled plants and drugs carries a maximum penalty of 7,500 penalty units and/or life imprisonment.

The Criminal Code Regulation 2002 (Cth), Schedule 4 sets out the commercial and marketable quantities for each border controlled drug. The Regulation also sets out the commercial and marketable quantity for each border controlled plant at Regulation 5E.

The quantity of border controlled plant or drug you have been charged with importing or exporting will affect the maximum penalties available.

THE OFFENCE OF IMPORTATION OR EXPORTATION OF A BORDER CONTROLLED PLANT OR DRUG

The offence of unlawfully importing border controlled plants or drugs is contained in Criminal Code Act 1995 (Cth), Schedule 1, Regulation 307. 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.

An offence under this section carries a maximum penalty of 2,000 penalty units and/or 10 years imprisonment.

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. An offence under this section carries a maximum penalty of 5,000 penalty units and/or 25 years imprisonment.

Regulation 307.1 provides for the aggravated offence of importing or exporting a commercial quantity of that drug or plant. An offence under this section carries a maximum penalty of 7,500 penalty units and/or life imprisonment.

WHAT ACTIONS MIGHT CONSTITUTE IMPORTING OR EXPORTING A BORDER CONTROLLED PLANT OR DRUG?

There is no formal definition of importation in the Criminal Code Act, however, from a common-sense perspective, importation could easily be read to include any action that leads to the border controlled drug/plant being introduced into Australia from outside.

Similarly, exporting could include any action by any individual that facilitates that drug/plant being transported from within Australia outside Australian borders.

According to the Australian Customs Service, the most common means of importation include post, air passengers and air cargo. Examples of importation or exportation include:

  • Taking the drug/plant on a plane with you, either on your person or in your luggage; when coming into Australia from overseas, or when leaving Australia.
  • Purchasing the drug/plant online and having it mailed to an Australian address.
  • Packing a quantity of the drug/plant in preparation for it to be conveyed overseas by someone else or via post.

WHAT THE POLICE MUST PROVE

To convict you of importing or exporting a border controlled plant or drug, the Prosecution must prove beyond a reasonable doubt:

That you:

  • Imported or exported a substance; and
  • That substance was a border controlled plant or drug;

To convict you of importing or exporting a marketable or commercial quantity of a border controlled plant or drug, the Prosecution must also prove beyond reasonable doubt that the quantity of drug was above the marketable or commercial quantity.

WHICH COURT WILL HEAR YOUR MATTER?

Under Commonwealth law, all of the above offences are strictly indictable offences. That means that they must be finalised in the District or Supreme Courts.

Types of penalties:

Fines for Importing or exporting a border controlled drug or plant charge: When deciding the amount of a fine for a use of prohibited drugs charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Good behaviour bond for Importing or exporting a border controlled drug or plant charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community service order for Importing or exporting a border controlled drug or plant charge (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Suspended sentence for Importing or exporting a border controlled drug or plant charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Periodic detention for Importing or exporting a border controlled drug or plant charge (commonly known as weekend detention): This form of imprisonment ceased to be a sentencing option in October 2010.

Intensive correction order for Importing or exporting a border controlled drug or plant charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Jail for a use of prohibited drugs charge: This is the most serious penalty for the charge of Importing or exporting a border controlled drug or plant charge and involves full time detention in a correctional facility. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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