A large spectrum of alleged criminal behaviors from minor tax and customs infractions to severe crimes under the Criminal Code Act 1995 (Cth) fall under the scope of Commonwealth offences. These charges are typically prosecuted by the Commonwealth Director of Public Prosecutions (‘CDPP’) or the Australian Federal Police (‘AFP’).
Our team at Jackson John Defence Lawyers are highly skilled legal professionals and possess the experience and knowledge required to provide exceptional representation in a wide range of Commonwealth legal issues.
Possessing quantities of unlawfully imported border controlled drugs is a serious offence that can have a significant impact on your life and reputation. If you have been charged with this offence, it is important to seek legal advice immediately.
The Law
Section 307.6 of the Criminal Code Act 1995 (Cth) states:
(1) A person commits an offence if:
Examples of marketable quantities of unlawfully imported border controlled drugs are:
What Must the Prosecution Prove?
To be successful, the Prosecution must establish each of the following elements beyond a reasonable doubt:
What are the Types of Penalties?
The maximum penalty for the offence of Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants is 25 years imprisonment and/or a fine of $550,000.
This offence includes a wide spectrum of offending conduct. As such, the type of penalties varies greatly. The Court may consider sentencing you to one or more of the following:
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
The maximum fine is 5000 penalty units for this offence. Many Commonwealth offences such as those in the Criminal Code Act 1995 (Cth) and Customs Act 1901 (Cth) are punishable by penalty units. Each penalty unit represents an amount of money, and the value of a Commonwealth penalty is indexed under a formula contained in section 4AA of the Crimes Act 1914 (Cth).
Date of offence | Value of one penalty unit |
On or after 1 July 2023 | $313 |
Between 1 January 2023 and 30 June 2023 | $275 |
Between 1 July 2020 and 31 December 2022 | $222 |
Between 1 July 2017 and 30 June 2020 | $210 |
Between 31 July 2015 and 30 June 2017 | $180 |
Between 28 December 2012 and 30 July 2015 | $170 |
Before 27 December 2012 | $110 |
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
There is no maximum term for an RRO and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
This offence carries a maximum imprisonment of 25 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
Possible Defences
A defence to the offence of possessing quantities of unlawfully imported border controlled drugs may be that the Prosecution cannot prove the requisite elements beyond a reasonable doubt. This may include:
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
For necessity to be established, the following must exist at the time of the commission of the offence:
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Why Jackson John?
When confronting charges related to border controlled drugs or plants, our team at Jackson John Defence Lawyers can assist you mount an effective defence. We have a wealth of experience in handling Commonwealth offences, our legal team understand the formidable resources of the CDPP and the AFP. Our aim is to provide superior representation, ensuring your rights are protected and helping you navigate the complexities of such prosecutions. Trust Jackson John Defence Lawyers for effective legal support and a tailored defense strategy.
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Legal Practitioners employed by this entity are members of the scheme and participate in the Discretionary Higher Cap.
In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community.
We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy
Liability limited by a scheme approved under Professional Standards Legislation.
In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
