Importing And Exporting Border Controlled (Cth)

Division 307 of Part 9 of the Criminal Code Act 1995 (“the Code”) contains offences that prohibit the importing / exporting and possession of border-controlled drugs, plants or border-controlled precursors. Drug offences, particularly importations of large quantities of drugs into Australia, are treated very seriously by the Courts. 

Importing and Exporting Border Controlled Drugs or Border Controlled Plants

Sections 307.1 – 307.3 of the Code contain the three offences that apply to a person who imports and/or exports border-controlled drugs or border-controlled plants into or out of Australia. The three sections are divided depending on the weight of the border-controlled drug or plant seized with the maximum penalties for the offences also ranging depending on the quantity seized.

The following acts constitute importing and exporting border-controlled drugs or border-controlled plants:

• A criminal syndicate hides 500kg of cocaine inside a shipping container filled with legitimate furniture arriving in Australia from South America,
• An individual arranges for several crates of industry machinery parts to be flown into Sydney. Upon inspection by the Australian Border Force the hollowed-out parts are found to contain 15kg of heroin, 
• A person arriving in Australia at the airport with a packet of ecstasy (MDMA) in their luggage.

What Must Be Proven?

For a person to be found guilty of importing and exporting border-controlled drugs or border-controlled plants, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• “Import” or “export” a substance, and 
• “Intend” to import or export a substance, and 
• The substance is a “border-controlled drug” or “border-controlled plant”, and
• You were “reckless” as to whether the substance is a border-controlled drug or plant, and
• The quantity imported or exported is:
  • A commercial quantity – Section 307.1
  • A marketable quantity – Section 307.2 
  • Of any quantity – Section 307.3.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

“Import” in relation to a substance is defined at Section 300.2 of the Code to mean import the substance into Australia and includes bringing the substance into Australia, and dealing with the substance in connection with its importation.

“Export” is defined to include take from Australia in Section 300.2.

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to import or export the substance meaning he or she meant to engage in that conduct. 

Section 301.4 provides the meaning of “border-controlled drug” as a substance, other than a growing plant that is listed by a regulation as a border controlled drug, or a drug analogue of a listed border controlled drug, or determined by the AFP minister as a border patrol drug. A list of these substances can be found in Schedule 2 of the Criminal Code Regulations 2019 together with the prescribed weights for each drug and the quantity thresholds. 

Similarly with “border-controlled plants” Section 301.5 provides the definition of a plant listed by a regulation as a border controlled plant, or determined by the AFP minister as a border controlled plant. A list of these plants can be found in Schedule 2 of the Criminal Code Regulations 2019 together with the prescribed weights for each plant and the quantity thresholds. 

The offence subsections prescribe that the fault element of “recklessness” applies to whether the substance is a border-controlled drug or border controlled plant. Accordingly, the defendant must have been “reckless” as to whether the substance is a border-controlled drug or plant. Recklessness in this context means if he or she is aware of a substantial risk that the circumstance will exist (the substance will be a border-controlled drug/plant)or will exist and having regard to the circumstances known to him or her it is unjustifiable to take the risk. 

The quantities of “commercial quantity” and “marketable quantity” can be determined by analysing Schedule 2 of the Criminal Code Regulations as the quantity thresholds vary from drug to drug. 

Which Court will Hear the Matter:

The Section 307.3 offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

The Sections 307.1 and 307.2 being the ‘commercial quantity’ and ‘marketable quantity’ offences are Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Importing and Exporting Border-Controlled Drugs or Border-Controlled Plants:

• Reasonable belief that conduct is justified or excused by law – Defence pursuant to Section 313.2 of the Code,

• For the Section 370.2 and 370.3 offences, if the person proves that he or she neither intended, nor believed that another person intended to sell any of the border-controlled drugs or any of the border-controlled plants. 

• The person did not import or export the substance, or the person did not have the intent to import or export the substance, 

• The substance was not a “border-controlled drug” or “border-controlled plant”, 

• Duress. 

Possessing Unlawfully Imported Border Controlled Drugs or Plants

Sections 307.5 – 307.7 of the Code contain the three offences that apply to a person who is in possession of unlawfully imported border-controlled drugs or border-controlled plants into or out of Australia. The three sections are divided up depending on the weight of the border-controlled drug or plant seized with the maximum penalties for the offences also ranging depending on the quantity seized.

The following acts constitute possession of unlawfully imported border-controlled drugs or border-controlled plants:

• A criminal syndicate successfully imports 100kg of methamphetamine (Ice) inside industrial machinery. The machinery is delivered to a suburban warehouse. A person is hired specifically to guard the warehouse and “watch over” the crates until they are ready for distribution.
• An individual accepts a delivery of several crates of industry machinery parts that arrived in Sydney with the machinery having hollowed-out parts containing 15kg of heroin, 
• A person is picking their friend up from the airport after they arrive in Australia. In the carpark, the friend gives the person a packet of ecstasy they found in their luggage as a gift for picking them up. 

What Must Be Proven?

For a person to be found guilty of importing and exporting border-controlled drugs or border-controlled plants, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• “Possess” a substance, and
• “Intend” to possess that substance, and 
• The substance was “unlawfully imported”, and 
• The substance is a “border-controlled drug” or “border-controlled plant”, and
• You were “reckless” as to whether the substance is a border-controlled drug or plant, and
• The quantity possessed is:
  • A commercial quantity – Section 307.5
  • A marketable quantity – Section 307.6
  • Of any quantity – Section 307.7.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

Section 300.2 of the Code defines “possession” of a thing to include receiving or obtaining possession of the thing, having control over the disposition of the thing (whether or not the thing is in the custody of the person) and having joint possession of the thing. 

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to possess the substance meaning they meant to engage in that conduct.

Section 301.4 provides the meaning of “border-controlled drug” as a substance, other than a growing plant that is listed by a regulation as a border-controlled drug, or a drug analogue of a listed border controlled drug, or determined by the AFP minister as a border patrol drug. A list of these substances can be found in Schedule 2 of the Criminal Code Regulations 2019 together with the prescribed weights for each drug and the quantity thresholds. 

Similarly, with “border-controlled plants” Section 301.5 provides the definition of a plant listed by a regulation as a border controlled plant, or determined by the AFP minister as a border controlled plant. A list of these plants can be found in Regulation 14 of the Criminal Code Regulations 2019 together with the prescribed weights for each plant and the quantity thresholds. 

The offence subsections prescribe that the fault element of “recklessness” applies to whether the substance is a border-controlled drug or border-controlled plant. Accordingly, the defendant must have been “reckless” as to whether the substance is a border-controlled drug or plant. Recklessness in this context means if he or she is aware of a substantial risk that the circumstance will exist (the substance will be a border-controlled drug/plant) or will exist and having regard to the circumstances known to him or her it is unjustifiable to take the risk. 

The quantities of “commercial quantity” and “marketable quantity” can be determined by analysing Regulation 14 and Schedule 2 of the Criminal Code Regulations as the quantity thresholds vary from drug to drug. 

Which Court will Hear the Matter:

The Section 307.7 offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

The Sections 307.5 and 307.5 being the ‘commercial quantity’ and ‘marketable quantity’ offences are Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Possession of Unlawfully Imported Border-Controlled Drugs or Border-Controlled Plants:

• The person proves that he or she did not know that the border-controlled drug or border controlled plant was unlawfully imported. 

• Reasonable belief that conduct is justified or excused by law – Defence pursuant to Section 313.2 of the Code,

• For the Section 370.6 and 370.7 offences, if the person proves that he or she neither intended, nor believed that another person intended to sell any of the border controlled drug or any of the border controlled plants. 

• The person did not intend to possess the substance, or was not in lawful possession of the substance, 

• The substance was not a “border-controlled drug” or “border-controlled plant”, 

• Duress. 

Importing and Exporting Border Controlled Precursors

Sections 307.11 – 307.13 of the Code contain the three offences that apply to a person who imports and/or exports border-controlled precursors into or out of Australia. The three sections are divided depending on the weight of the border-controlled precursor with the maximum penalties for the offences also ranging depending on the quantity seized.

The following acts constitute importing and exporting border-controlled precursors: 

• A person arranges for a shipment of 500kg of Pseudoephedrine (a common precursor for “Ice”) to be imported from overseas, mislabelled as “industrial cleaning detergent” or “laundry powder.” 
• A syndicate imports several thousand bottles of “health supplements” from an international supplier. Upon testing by the Australian Border Force, it is discovered that the capsules actually contain pure Ephedrine.
• An individual uses their legitimate food distribution business to import shipping containers of rice. Hidden deep within the pallets of rice are 300kg of a precursor chemical (like 1-Phenyl-2-propanone or P2P).

What Must Be Proven?

For a person to be found guilty of importing and exporting border-controlled drugs or border-controlled plants, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• “Import” or “export” a substance, and 
• “Intend” to import or export a substance, and 
• The substance is a “border-controlled precursor”, and
• You were “reckless” as to whether the substance is a border-controlled precursor, and
• The quantity imported or exported is:
  • A commercial quantity – Section 307.11
  • A marketable quantity – Section 307.12 
  • Of any quantity – Section 307.13.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

“Import” in relation to a substance is defined at Section 300.2 of the Code to mean import the substance into Australia and includes bringing the substance into Australia, and dealing with the substance in connection with its importation.

“Export” is defined to include take from Australia in Section 300.2.

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to import or export the substance meaning he or she meant to engage in that conduct. 

Section 301.6 provides the meaning of “border-controlled precursor” as a substance (including a growing plant) that is listed by a regulation as a border-controlled precursor, or a salt or ester of a precursor that is so listed, or an immediate precursor of a precursor so listed, or as determined by the AFP minister as a border patrol precursor. A list of these substances can be found in Regulation 16 of the Criminal Code Regulations 2019 together with the prescribed weights for each drug and the quantity thresholds. 

The offence subsections prescribe that the fault element of “recklessness” applies to whether the substance is a border-controlled drug or border-controlled plant. Accordingly, the defendant must have been “reckless” as to whether the substance is a border-controlled drug or plant. Recklessness in this context means if he or she is aware of a substantial risk that the circumstance will exist (the substance will be a border-controlled drug/plant)or will exist and having regard to the circumstances known to him or her it is unjustifiable to take the risk. 

The quantities of “commercial quantity” and “marketable quantity” can be determined by analysing Regulation 16 and Schedule 2 of the Criminal Code Regulations as the quantity thresholds vary from drug to drug. 

Which Court will Hear the Matter:

The Section 307.13 offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

The Sections 307.11 and 307.12 being the ‘commercial quantity’ and ‘marketable quantity’ offences are Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Importing and Exporting Border-Controlled Precursors:

• Reasonable belief that conduct is justified or excused by law – Defence pursuant to Section 313.2 of the Code,

• The person did not import or export the substance, or the person did not have the intent to import or export the substance, 

• The substance was not a “border-controlled precursor”.

• Duress. 

Common Questions about Import-Export Offences:

Will I receive a criminal conviction?

A conviction and criminal record for these offences is very likely. 

In NSW, a court can impose any of the following penalties for import-export offences.

• Gaol Sentence
• Section 20(1)(a) Recognizance Order
• Intensive Corrections Order (ICO)
• Section 20(1)(b) Conditional Release Order
• Community Corrections Orders (CCO)
• Fine
• Section 19B(1)(d) Recognizance Order
• Conditional Release Order with Conviction 
• Section 19B(1)(c) Dismissal
• Conditional Release Order without Conviction
• Section 10(1)(a) Dismissal

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for import-export offences might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol for Import-Export Offences?

Whether a person is sentenced to gaol for committing an import-export related offence will depend on the seriousness and circumstances of their matter. Due to the seriousness of importing illegal drugs into Australia and the prescribed quantities of commercial and marketable quantities, it is overwhelmingly likely that a person charged with these offences will receive a sentence of full time custody. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.