Smuggling and importing/exporting prohibited goods is a serious criminal offence involving the unlawful movement of restricted items across national borders. This offence encompasses a range of illegal activities, from trafficking in illegal drugs to smuggling contraband items. It involves knowingly and deliberately breaching customs and border control laws, often resulting in severe legal consequences.
The Law
Under section 233 of the Customs Act 1901 (Cth):
(1) A person shall not:
Understanding the Law
‘Prohibited goods’ are goods prohibited by any Commonwealth legislation, including:
What Must be Proven?
To be found guilty of smuggling or exporting/importing such prohibited goods, the Prosecution must prove beyond a reasonable doubt that you:
If you have doubts about the Prosecution’s ability to prove these crucial factors beyond a reasonable doubt, you may consider contesting the charges by entering a not guilty plea in court. In this scenario, our team of highly skilled criminal lawyers will diligently craft a robust defence to challenge the Prosecution’s case.
What are the Types of Penalties?
Typically, the punishment for engaging in the smuggling, importing, or exporting of prohibited goods involves fines. The fine’s magnitude is largely dependent upon the value of the goods smuggled.
However, the specific penalty you receive will be contingent upon the unique circumstances of your case and can include 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.
Should the court be able to ascertain the goods’ value, you might be subject to a fine of up to three times the goods’ value or up to 1,000 penalty units, whichever amount is greater. If the value is unknown, the maximum fine is 1,000 penalty units.
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 |
Possible Defences
The defence of an honest and reasonable mistake will be valid if the accused can prove that they genuinely believed in a scenario where their actions would be considered innocent had it been true. For example, if you believed that the goods were some other legal goods.
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?
Jackson John Defence Lawyers is a leading criminal defence law firm with extensive experience in defending clients charged with smuggling and importing and exporting prohibited goods. We understand the serious consequences that a conviction can have, and we will work tirelessly to protect your rights and interests. We have a proven track record of success in defending clients charged with this offence, and we are committed to fighting for the best possible outcome in your case. If you have been charged with smuggling and importing and exporting prohibited goods, do not hesitate to contact Jackson John Defence Lawyers today. We are here to help you.
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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.
