Individuals in Australia are getting caught more frequently for smuggling and distributing prohibited drugs. These dealings in illegal drugs (cannabis, cocaine, ecstasy, methamphetamine are examples) are very serious criminal offences and carry heavy custodial sentences. It was published in 2016 that around 3.1 million Australians reported using an illicit drug. The most common illicit drug used was cannabis, followed by misuse of pharmaceuticals, cocaine, and then ecstasy. It was reported last week that eight people were arrested over a drug smuggling plane syndicate operating on commercial US flights.
THE STORY
As reported by 9 news, a total of 17kg of cocaine and 44kg of methylamphetamine has been seized with an estimated street value of $18.3 million.
A Sydney airport shuttle driver has been accused of helping mastermind the importation of more than $18 million worth of drugs in cargo and via passengers on commercial flights from the United States.
The 66-year-old man is one-of-eight people charged in Australia and the US during an operation targeting a network of “air couriers” involving police and immigration agencies from both countries.
The man was charged with attempt to import a commercial quantity of border-controlled drug and refused bail.
ABF Superintendent Garry Low said the man was a “significant player” in a syndicate that had actors both in Australia and the US.
“We will allege he was a centrepiece of this criminal syndicate within Australia,” he said.
In addition to the three people arrested in Australia, five have been charged offshore as a result of the operation and multiple air cargo consignments stopped before reaching Australia.
“Although it’s not record-breaking amounts, it is significant in the manner in which they attempted to bring these substances into Australia,” Supt Low said.
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 term of imprisonment.
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 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.
This 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; and
- 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.
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 with 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:
| Quantity | Cocaine | Methamphetamine | Ecstasy | Heroin | Maximum Penalty |
| Marketable | 2 gms | 2 gms | 0.5 gms | 2 gms | 25 years imprisonment and/or a fine of 5000 penalty units |
| Commercial | 2 kgs | 0.75 kgs | 0.5 kgs | 1.5 kgs | life imprisonment and/or a fine of 7500 penalty units |
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