Importing a Border Controlled Drug

Importing controlled drugs into Australia is a federal (or Commonwealth) offence. To prove an offence under federal criminal law, the prosecutor must prove both the physical elements of the offence (that is, the things that were done) and the fault elements (the offender’s state of mind).

Importing means generally bringing goods into Australia. Between 1 January 1997[1] and 20 February 2010[2] the definition of importing was narrower. It now includes to “deal with the substance in connection with its importation.”[3]

The physical elements of the importing offence are:

    1. importing a substance; and,
    2. the substance is a border controlled drug.[4]

The fault elements are:

  1. for the physical element of importing a substance – intention;[5] and,
  2. for the physical element that the substance was a border controlled drug – recklessness.[6]

However, if a person is accused of aiding, abetting, counselling or procuring the commission of the offence then the physical elements are that:

  1. the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; AND
  2. the offence must have been committed by the other person.[7]

For the physical elements of conduct that in fact aided, abetted, counselled or procured, the fault element is that the person must either:

  1. have intended that his conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; OR
  2. have intended that his conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed;[8] OR
  3. have had the state of mind required by a special liability provision in the principal offence.[9]

The fault element must exist at the same time as the physical element.[10]

Sentencing

 The maximum sentence for importing a commercial quantity of a border controlled drug is life imprisonment.

Examples of sentences imposed for this offence were discussed in R v Handlen & Paddison[11] from [123] to [152]. In that case the Court of Appeal upheld Mr Handlen’s sentence of life imprisonment with a non-parole period of 22 years, and Mr Paddison’s sentence of 22 years with a non-parole period of 14 and a half years.

[1] Criminal Code 1995 (Cth) came into force 1 January 1997

[3] The effect of the amendment is to over-rule the narrow interpretation applied in R v Campbell [2008] NSWCCA 214 at [140]-[145]

[4] Section 307.1 Criminal Code 1995 (Cth)

[5] Section 5.6(1) Criminal Code 1995 (Cth), unless importing is characterised as a physical element that consists of a circumstance or result, in which case the fault element is recklessness; s.5.6(2).

[6] Section 307.1(2) Criminal Code 1995 (Cth)

[7] Section 11.2(2) Criminal Code 1995 (Cth)

[8] Section 11.2(3) Criminal Code 1995 (Cth)

[9] Section 11.2(6) Criminal Code 1995 (Cth)

[10] R v Campbell [2008] NSWCCA 214 at [44]

[11] R v Handlen & Paddison [2010] QCA 371