Drug Importation & Trafficking Charges

Why these charges are different — the Commonwealth dimension

Criminal Code Act 1995 (Cth), Part 9.1: importing or exporting border controlled drugs (ss 307.1–307.3) and trafficking controlled drugs (ss 302.1–302.4). Investigated by the Australian Federal Police and Australian Border Force; prosecuted by the Commonwealth Director of Public Prosecutions (CDPP).

Most drug charges in NSW are state charges — supply under the Drug Misuse and Trafficking Act 1985, investigated by NSW Police and prosecuted by NSW authorities. Importation and trafficking sit in a different system altogether:

• A different Act — the Criminal Code 1995 (Cth), with its own structure of physical and fault elements, its own drug schedules and its own quantity thresholds ("marketable" and "commercial", not the NSW tiers);
• Different investigators — the AFP and Australian Border Force, often working with international agencies, using telecommunications interception, surveillance devices and controlled operations over months;
• A different prosecutor — the CDPP, which approaches charge selection, negotiation and sentencing submissions differently from state prosecutors;
• A different sentencing regime — Part IB of the Crimes Act 1914 (Cth), with its own principles, no NSW standard non-parole periods, and federal mechanisms such as recognizance release orders.

The charges are heard in NSW courts exercising federal jurisdiction — committal in the Local Court, trial in the District or Supreme Court — but the law applied in them is Commonwealth law from start to finish. Experience specifically in that system matters.

The importation offences and their penalties

The importation ladder turns on quantity. Each border controlled drug has a marketable quantity and a commercial quantity set by the Criminal Code Regulations — for cocaine, 2 grams and 2 kilograms respectively. The tiers:

• Import or export a commercial quantity (s 307.1) — maximum life imprisonment and/or a fine of $2,475,000 (7,500 penalty units);
• Import or export a marketable quantity (s 307.2) — maximum 25 years' imprisonment and/or a fine of $1,650,000 (5,000 penalty units);
• Import or export a border controlled drug (s 307.3, no quantity threshold) — maximum 10 years' imprisonment and/or a fine of $660,000 (2,000 penalty units).

Note how low the marketable thresholds sit: 2 grams of cocaine imported is a 25-year-maximum offence. The domestic trafficking offences (ss 302.1–302.4) mirror the structure for dealing in controlled drugs within Australia where the Commonwealth has jurisdiction, with the same life maximum at commercial quantity. Importation also extends beyond the border moment itself — dealing with goods after import, including collecting or moving a package, can fall within "import".

"I never opened the package" — knowledge, recklessness and the courier cases

The most common importation fact pattern is not the shipping container; it is the person who collected a package, carried a bag, or let a delivery come to their address. The prosecution does not have to prove you knew precisely what the substance was. It must prove you intended to import the substance and that you knew, or were reckless as to whether, it was a border controlled drug. Recklessness — awareness of a substantial risk, and proceeding anyway — is a lower bar than knowledge, and it is where these trials are fought.

Two things follow. First, genuine ignorance is a real answer: people are used as unwitting couriers and recipients, and the surrounding evidence — payment, communications, conduct before and after — is what the contest is actually about. Second, the quantity element is one of absolute liability: the prosecution does not need to prove you knew how much was involved. A courier who believed they were carrying a small amount can face the commercial-quantity maximum. That asymmetry makes early, senior advice about the realistic shape of the case essential before any plea decision is made.

How these investigations are built — and where they are tested

Commonwealth drug prosecutions are long investigations that surface suddenly. By the time of arrest there are typically months of telecommunications intercepts, surveillance product, financial records and international liaison material — and often a controlled operation: a detected consignment allowed to run under authorisation, frequently with the drugs substituted, to identify the people awaiting it.

Each layer is testable. Interception and surveillance warrants have statutory preconditions. Controlled operation authorisations have limits, and conduct outside them matters. Substitution raises attempt and impossibility questions. Identity in intercepted communications — who is actually using the phone or the handle — is frequently the live issue. And the analysis and continuity of the substance itself, from seizure to certificate, is never simply assumed. The defence task is to take a brief that arrives looking overwhelming and test it element by element, warrant by warrant.

Sentencing in the federal system

Crimes Act 1914 (Cth), s 16A: the court must impose a sentence of a severity appropriate in all the circumstances, having regard to the matters in s 16A(2), including the nature and circumstances of the offence, contrition, cooperation, and the offender's antecedents.

Federal sentencing has its own logic. General deterrence is given heavy weight in importation matters, and at marketable and commercial quantities full-time imprisonment is the usual outcome — that should be said plainly. Within that reality, role is the great variable: the courts distinguish sharply between principals, organisers, and the couriers and collectors recruited at the edges of a syndicate. Quantity, role, plea timing, cooperation and the subjective case all bear on where a sentence falls within a very wide range. Every matter turns on its own facts.

Commonwealth drug charges also routinely arrive with asset restraint under the Proceeds of Crime Act 2002 (Cth) — frozen accounts and restrained property, on a civil standard, before any conviction. That parallel proceeding needs its own strategy from the outset; see Proceeds of Crime.

How Lenz Legal approaches Commonwealth drug matters

These are the matters where senior, methodical defence work earns its keep. Dean Lenz's approach: deal with bail and any asset restraint immediately; obtain the full brief — including the warrants, authorisations and intercept product, not just the summary — and map the prosecution case element by element before any position is taken. Knowledge and recklessness, identity on the intercepts, the lawfulness of the operation and the quantity case are each tested on their merits.

Where trial is the right course, it is prepared as a trial from the beginning, with counsel briefed early. Where a plea is the realistic course, the work turns to the agreed facts — role above all — the timing of the plea, and a subjective case built for the federal sentencing framework. In matters of this seriousness, the difference between an unprepared and a prepared position is measured in years.

If you have been arrested, contacted by the AFP, or had a search warrant executed — or someone close to you has — get advice before anyone answers questions. In Commonwealth matters, the record of interview is permanent and the investigators are well ahead of you by the time they knock.

Importation & trafficking — your questions answered