Drug Importation/Exportation

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What is Drug Importation/Exportation ?

The importation of border-controlled drugs is a federal offence under ), Schedule 1, Regulation 307 of the Criminal Code 1995 (Cth). Importing or exporting a border-controlled drug is a Commonwealth offence and the penalties that can be imposed are harsh with the majority of offenders sentenced to a jail sentence.

Case law/Jurisdiction
The term “import” is defined in the Criminal Code as importing a substance into Australia and includes bringing the substance into Australia; and dealing with the substance in connection with its importation.  This is a new definition and was inserted into the Commonwealth Criminal Code in January 2011 following the decision of Campbell v Regina (2008) 73 NSWLR 272.

The Law

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.”

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.

Regulation 307.1 provides for the aggravated offence of importing or exporting a commercial quantity of that drug or plant.

What must the prosecution prove?

Since Drug importation/exportation offence is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove each of the elements in the charge beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Drug importation/exportation.

To establish Drug importation/exportation, the prosecution must prove each of the following matters beyond reasonable doubt;

  • The substance imported is a border-controlled drug, and the person was reckless as to that fact
  • The quantity was above the commercial or marketable quantity, as the case may be

That a person imported a substance into Australia, and imported that substance intentionally

If you are charged with the offence of Drug importation/exportation what are your options?

National Criminal Lawyers are one of the best Drug Lawyers Sydney and greater Sydney have to offer. We have been successful in defending a number of Drug importation/exportation charges where the prosecution could not establish each of the elements of Drug importation/exportation.

NCL offer the following options for those who have been charged with Drug importation/exportation;

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work to get you the best result.

Maximum Penalties

Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled drugs without a lack of commercial intent, Section 307.4.  That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).

The following table provides information in relation to the relevant marketable and commercial quantities of some border-controlled drugs:

QuantityCocaineMethamphetamineEcstasy HeroinMaximum Penalty
Marketable2 gms2 gms0.5 gms2 gms25 years imprisonment and/or a fine of 5000 penalty units
Commercial2 kgs0.75 kgs0.5 kgs1.5 kgslife imprisonment and/or a fine of 7500 penalty units

NO COMMERCIAL INTENT

Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled drugs without a lack of commercial intent, Section 307.4.  That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended numerous people charged with Drug importation/exportation and are experts at these hearings.

Defences

Some of the possible defences available for those charged with Drug importation/exportation can include;

As this is a Commonwealth criminal offence, the provisions of Part 2.3 of the Commonwealth Criminal Code apply in relation to circumstances in which there is no criminal responsibility.  Specifically, in relation to drug offences, defences of duress under Section 10.2 apply.  In this regard, it is noted that what must be established is that a person “reasonably believed” that: A threat has been made that will be carried out unless an offence is committed; and There is no reasonable way that the threat can be rendered ineffective; and The conduct is a reasonable response to the threat.

In the context of a drug importation, the conduct referred to would be the importation of drugs.

It should also be noted that it is required that the prosecution 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.

For offences involving less than a commercial quantity, there is a defence open if it can establish that they neither intended, nor believed, that another person intended to sell the border-controlled drug.  This is referred to as a “lack of any commercial intent”.  That defence does not apply when the quantity is a commercial quantity.

Even if a person can establish that they had no commercial intent, there is still an offence of importing or exporting boarded controlled drugs without a lack of commercial intent, Section 307.4.  That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 400 penalty units ($440,000).

As such;

  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Drug importation/exportation charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10.

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine and/or
  • New Conditional release Order (CRO)

Case Studies

Our solicitors represented a man charged with importing a commercial quantity of cocaine. We were successful in having the evidence of his subsequent conduct excluded and the charge of importing a commercial quantity of cocaine was dropped.

Our solicitors represented a client was charged with the offence of drug importation, which has a maximum penalty of 5 years imprisonment and/or a fine of $170,000. Our client entered a plea of guilty to the charge early in the process. We represented our client in her sentencing hearing and managed to get a sentence of 2 year and 2 months.

We briefed counsel to represent our client who was charged with import a commercial quantity of boarder-controlled drug, namely cocaine. The matter was heard in the District Court of New South Wales. The client plead not guilty and claimed to be an unsuspecting courier. The defendant, a British Citizen travelled from Portugal to Australia via Chile and New Zealand. Upon arriving at Sydney Airport, the defendant underwent routine processing by Australian Customs and Boarder Protection Services. The defendant’s baggage was examined by Customs Officers and was found to contain two large blue shopping bags containing cigarettes. An examination of one of the packages revealed that it was a constructed item containing what presumptive tests determined to be cocaine. AFP forensic examinations revealed that the packaging contained a total of 2.233kg of pure cocaine. The defendant revealed to police that a friend requested he collect a debt owed from Australia and return to Portugal. The luggage was given to the defendant by this friend for the purposes of the trip. The cigarettes were given as part of the luggage.

Counsel for the defence argued that the defendant was taken advantage of and was an unsuspecting courier. A jury of 12 found that the defendant was not guilty, and he was subsequently released and returned to the UK.

Another of our clients came from Ethiopia and was the primary carer for her 10-year-old son, with the family being separated from their father. The client was on a bridging visa and in the process of settling in Australia. The client also had a drug dependency issue. Our client was caught entering the country with 1.79 kilograms of Methamphetamine secreted in her luggage. Our client fully admitted the Crime having agreed to traveling with bags as a mule. After being arrested she we were successful in obtaining strict Bail. It was then discovered that this client while knowing what she was doing was only traveling with the drugs because she needed the money to feed her own out of control drug habit. In Court using the case of “Henry” it was argued that this client was particularly vulnerable and the lowest down in the food chain and least respected person in a vicious cartel. Moreover, she had special circumstances because she had had a drug addiction since the age of 12. In court it was successfully submitted by counsel that it was this habit not greed which fuelled her motive to smuggle drugs. Taking into consideration the case of “Henry” the Judge found this client’s case to be an exceptional one and despite our client being found to be substantially involved in  importation and supply, she received an Intensive Correction Order and did not go to gaol.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Drug importation/exportation offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

Book your first free appointment with National Criminal lawyers now.
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