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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 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.
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:
To convict you of importing or exporting a border controlled plant or drug, the Prosecution must prove beyond a reasonable doubt:
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.
The legislation provides a defence to the offences under section 307.2 and 307.3, that is, importing and exporting border controlled drugs or plants, or importing and exporting marketable quantities of border controlled drugs or plants.
This defence can be found at Section 307.2(4) and 307.3(4) which are identical. The defence provision reads:
“Subsection (1) does not apply 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 plant or its products.”
It is important to note that if you wish to rely on this defence, the burden is on you, the defendant, to establish that they did not intend or believe another person intended to sell the drugs/s or plant/s in question.
This defence is not available for an offence under section 307.1, being importing or exporting commercial quantities of border controlled drugs or plants.
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.
Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive Corrections Order (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.
Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. 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.
Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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.
Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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 Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.
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.