Drug importation charges can arise in a variety of circumstances, including allegations involving passengers arriving at an Australian airport, parcels or mail intercepted at the border, freight consignments and organised drug importation operations.

The seriousness of the charge depends upon matters including the type and pure quantity of the drug, whether it is a trafficable, marketable or commercial quantity, the accused person's knowledge and role, and whether the Prosecution alleges an intention to sell the drugs.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing Commonwealth drug importation charges throughout Sydney and New South Wales. We carefully examine the Prosecution evidence, the circumstances of the alleged importation and the accused person's alleged involvement.

What is Drug Importation?

Drug importation offences are principally contained in Division 307 of the Criminal Code Act 1995 (Cth).

The legislation refers to "border controlled drugs" rather than simply using the term illicit or prohibited drugs.

Under section 307.3, a person commits an offence if they:

1. import or export a substance; and
2. the substance is a border controlled drug or border controlled plant.

The maximum penalty for the basic importation offence is:

10 years' imprisonment, 2,000 penalty units, or both.

The legislation provides more serious offences where the quantity imported reaches the applicable marketable or commercial quantity.

What Does "Import" Mean?

Importation is a Commonwealth offence because it concerns bringing a border controlled drug into Australia.

An alleged importation can occur through circumstances such as:

• bringing drugs into Australia as a passenger;
• concealing drugs in luggage;
• importing drugs through international mail;
• receiving an international parcel;
• importing drugs through freight or cargo;
• arranging for another person to transport drugs into Australia; or
• participating in an organised importation operation.

The Prosecution does not necessarily need to establish that the accused physically carried the drugs through an Australian airport.

The precise nature of the accused person's involvement is therefore critical.

Elements of Drug Importation

1. A Substance Was Imported

The Prosecution must establish that a substance was imported into Australia.

Evidence may include:

• Australian Border Force records;
• Customs examinations;
• airport surveillance;
• international shipping records;
• parcel and postal records;
• freight documentation;
• tracking information;
• photographs;
• fingerprints or DNA;
• communications; and
• admissions allegedly made by the accused.

2. The Substance Was a Border Controlled Drug

The Prosecution must establish that the substance was a border controlled drug within the meaning of the Criminal Code.

Depending upon the circumstances, this may involve forensic analysis establishing the identity and purity of the substance.

3. The Required Fault Element

For the drug element of the offence, the legislation provides that recklessness applies.

Importantly, the Prosecution does not necessarily need to prove that the accused knew the precise identity of the drug.

The Commonwealth drug offence framework specifically provides that it is generally unnecessary for the Prosecution to establish that a person knew or was reckless as to the particular identity of the border controlled drug.

This makes the circumstances surrounding the accused person's knowledge and involvement particularly important.

Drug Quantity and the Severity of the Charge

Quantity is one of the most important features of a Commonwealth drug importation Prosecution.

The Criminal Code creates different offences according to whether the quantity imported is:

• a trafficable quantity;
• a marketable quantity; or
• a commercial quantity.

The applicable quantities vary according to the particular drug and are prescribed by the Criminal Code Regulations 2019 (Cth).

Importantly, Commonwealth drug offences generally use the pure weight of the drug, rather than simply the total weight of a substance containing the drug.

This can make forensic evidence concerning purity extremely important.

Importing a Commercial Quantity

Under section 307.1 of the Criminal Code Act 1995 (Cth), a person commits an offence if they import a border controlled drug in a commercial quantity.

Maximum penalty

Life imprisonment

or

7,500 penalty units

or both.

This is the most serious of the principal drug importation offences.

The quantity threshold for a commercial quantity differs depending upon the particular drug.

Importing a Marketable Quantity

Under section 307.2, importing a border controlled drug in a marketable quantity is a separate offence.

Maximum penalty

25 years' imprisonment

or

5,000 penalty units

or both.

There is an important statutory provision concerning commercial intent.

Section 307.2 does not apply if the accused proves that they neither intended, nor believed that another person intended, to sell the border controlled drug or its products.

This is a matter on which the accused bears a legal burden under the legislation.

The circumstances surrounding the intended use of the drugs can therefore be highly significant.

Basic Drug Importation Offence

Where the quantity does not reach the marketable or commercial quantity applicable to the particular drug, section 307.3 may apply.

Maximum penalty

10 years' imprisonment

or

2,000 penalty units

or both.

The fact that an importation involves a comparatively small quantity does not make the offence insignificant. Commonwealth courts treat drug importation as serious offending and general deterrence is an important sentencing consideration.

Drug Importation Penalties at a Glance

These are maximum penalties, not automatic sentences. The actual sentence depends upon the circumstances of the individual offence and offender.

Importation and Intention to Sell

The Prosecution may allege that an imported drug was intended to be sold.

This can be particularly important where the quantity reaches the marketable threshold.

Evidence potentially relied upon by the Prosecution may include:

• the quantity of the drug;
• packaging;
• communications;
• financial records;
• electronic devices;
• scales or other equipment;
• the manner in which the drugs were concealed;
• evidence concerning the intended recipient; and
• evidence concerning payments or anticipated financial reward.

However, the mere presence of a substantial quantity does not necessarily establish every allegation concerning the accused person's intended involvement.

The Prosecution must establish the relevant offence in accordance with the applicable statutory requirements.

The Role of the Accused Person

One of the most important sentencing considerations in a drug importation case is the accused person's role in the importation.

A person may be alleged to have acted as:

• the organiser of an importation;
• a financier;
• a principal;
• an intermediary;
• a courier;
• a person recruited to carry luggage;
• a recipient; or
• a person performing a limited task within a broader criminal enterprise.

The courts recognise that a person's role and level of participation are important considerations in determining the objective seriousness of the offending.

Importantly, simply describing a person as a "courier" does not determine the appropriate sentence. The court must examine what that individual actually did and their knowledge and involvement in the particular importation.

Drug Importation and Conspiracy

Drug importation matters can involve allegations of conspiracy or other related Commonwealth offences.

A Prosecution may allege that multiple people worked together to arrange the importation, even where an individual did not personally possess or transport the drugs.

The evidence concerning communications, financial transactions, travel arrangements and relationships between alleged participants can therefore be significant.

Attempted Drug Importation

A person may also face an allegation concerning an attempted importation where the importation was intercepted or otherwise prevented before it was completed.

The fact that authorities intercepted the drugs before they reached their intended destination does not necessarily mean that the accused cannot be prosecuted.

The applicable charge and potential penalty depend upon the precise conduct alleged and the stage reached by the alleged offending.

Drug Importation and Australian Border Force

Drug importation investigations frequently involve Australian Border Force and the Australian Federal Police.

Investigations may involve:

• examination of luggage;
• parcel interception;
• controlled deliveries;
• surveillance;
• telecommunications evidence;
• examination of electronic devices;
• financial investigations;
• forensic analysis;
• search warrants; and
• covert investigative techniques.

The evidence gathered during the investigation should be carefully examined.

Can I Defend a Drug Importation Charge?

Being charged with drug importation does not mean that you are guilty.

The Prosecution bears the burden of establishing the elements of the offence, subject to any specific statutory matter for which the legislation places a legal burden upon the accused.

Depending upon the circumstances, issues may include:

• the accused did not import the substance;
• the accused was not involved in the importation;
• the accused did not know about the relevant substance;
• the Prosecution cannot establish the accused's required fault element;
• the accused was not responsible for the relevant parcel, luggage or freight;
• the substance was not a border controlled drug;
• the forensic evidence concerning the substance is unreliable;
• the quantity has been incorrectly calculated;
• the purity analysis is disputed;
• the Prosecution cannot establish the alleged role of the accused;
• the accused did not have the alleged intention concerning the drugs; or
• the Prosecution evidence is unreliable or inconsistent.

The appropriate defence will depend entirely upon the evidence and circumstances of the particular matter.

Challenging Drug Quantity and Purity

The quantity and purity of the drug can have an enormous impact upon the charge and potential penalty.

For Commonwealth drug offences, the relevant quantity is generally based upon the pure quantity of the drug.

This means that forensic evidence can be critical.

Issues may arise concerning:

• the sampling methodology;
• the testing procedure;
• the accuracy of laboratory analysis;
• the purity calculation;
• the total quantity;
• whether the relevant samples are representative; and
• whether the substance actually reaches the statutory threshold for a marketable or commercial quantity.

A difference in the calculated pure quantity can potentially affect the applicable offence.

Sentencing for Drug Importation

Drug importation offences are treated as serious Commonwealth offences.

The NSW Judicial Commission notes that general deterrence is given significant weight in Commonwealth drug importation sentencing because of the difficulty of detecting importation offences and the significant community harm associated with the drug trade.

However, sentencing is not determined by quantity alone.

The court may consider:

• the quantity and purity of the drug;
• the type of drug;
• the accused person's knowledge;
• the accused person's role;
• the level of participation;
• whether the accused was a courier or principal;
• the anticipated financial reward;
• whether the accused was motivated by financial circumstances;
• the sophistication of the importation;
• whether the offending involved an organised criminal enterprise;
• the accused person's criminal history;
• prospects of rehabilitation;
• remorse;
• assistance provided to authorities; and
• the circumstances in which the accused became involved.

The Judicial Commission specifically identifies quantity, knowledge, role and anticipated reward as important factors in determining the appropriate sentence.

Life Imprisonment for Commercial Quantities

The availability of a life imprisonment maximum penalty for commercial quantity importation demonstrates the seriousness with which Commonwealth law treats large-scale drug importation.

Life imprisonment is not automatically imposed whenever a commercial quantity is involved.

The court must assess the individual circumstances of the offence and offender.

The NSW Judicial Commission notes that life imprisonment has been regarded as appropriate in the most serious importation cases, particularly for offenders occupying highly significant positions within an importation enterprise.

Guilty Pleas and Sentencing

An early guilty plea may affect the sentence imposed.

Commonwealth sentencing is governed principally by Part IB of the Crimes Act 1914 (Cth), rather than simply applying the ordinary NSW sentencing provisions applicable to state offences.

The court must impose a sentence that is appropriate in all the circumstances and consider the matters required by the Commonwealth sentencing legislation.

How We Can Help

A drug importation charge requires sophisticated analysis of both the evidence and the applicable Commonwealth legislation.

At Chidiac & Associates, we provide:

• confidential advice about drug importation allegations;
• advice concerning Commonwealth drug offences;
• detailed analysis of Prosecution evidence;
• examination of Australian Border Force and AFP evidence;
• analysis of forensic and purity evidence;
• assessment of the quantity alleged to have been imported;
• advice concerning the accused person's alleged role;
• advice concerning potential defences;
• representation at court;
• advice concerning guilty pleas;
• sentencing advice and representation; and
• advice concerning assistance to authorities where appropriate.

Our approach is built on thorough preparation, practical advice and strong courtroom advocacy.