In NSW, the stakes are high for a drug importation client. Our criminal lawyers in Sydney see these cases every day. In the following article, we list the most commonly asked questions about drug importation.
Common Client Questions About Drug Importation in NSW: Who Are The Client?
In most cases, drug importation clients are typically:
- A person arrested at an international airport with drugs concealed on or within their body, or in luggage
- Someone whose mail parcel was intercepted by the Australian Border Force (ABF), increasingly common with online and postal purchases
- A person accused of being a courier in a larger operation, sometimes coerced or deceived
- Someone facing a controlled delivery operation, where the AFP or ABF have intercepted the drug and are watching to see who collects it
- A person whose alleged “role” is disputed, were they a minor courier or an organiser?
These clients are represented at the District or Federal Court level. The charges are Commonwealth offences under the Criminal Code Act 1995 (Cth). The stakes are existential, life imprisonment is on the table.
The Top Questions About Drug Importation
1. “How serious is this? Am I going to prison for life?”
The first and most pressing question. Clients are often in shock at the scale of the penalties.
Key legal points:
- Drug importation is a Commonwealth offence under Division 307 of the Criminal Code Act 1995 (Cth), not a NSW state offence
- The Division 307 importation offences are strictly indictable and must be finalised in the District or Supreme Court
- Maximum penalties by quantity category (expressed in penalty units, exact dollar equivalents change as penalty unit values are updated):
- Any quantity (other than marketable or commercial): up to 10 years’ imprisonment and very substantial fines
- Marketable quantity: up to 25 years’ imprisonment and very substantial fines
- Commercial quantity: Life imprisonment and very substantial fines
- These maximums are rarely imposed, courts treat them as the worst possible case; sentencing is highly individual
- The leading NSW sentencing guide for importation is DPP v De La Rosa [2010] NSWCCA 194
- Key sentencing factors: the offender’s role, financial reward, the weight of the pure drug, cooperation with authorities, plea, and remorse
2. “The police weighed the drugs including the packaging/wrapping. Does that matter?”
Highly technical but critically important, particularly at higher quantity thresholds where the difference between “marketable” and “commercial” can mean the difference between 25 years and life.
Key legal points:
- Federal police routinely weigh border-controlled drugs including packaging and admixtures immediately after arrest, this inflates the apparent weight
- Note that the offence thresholds in the Criminal Code are defined by the weight of the “border-controlled drug” as set out in the Schedule, not by purity alone. However, the weight of the pure drug (as distinct from packaging and admixtures) is what courts place the most significance on at the sentencing stage
- A drug certificate (toxicology report) will reveal the true weight of the pure substance, often produced relatively late in proceedings
- The initial charge may be based on gross weight, an experienced lawyer should always obtain and scrutinise the drug certificate and challenge any reliance on inflated gross weight figures
3. “I didn’t know what was in the package / I thought it was something else. Is that a defence?”
Extremely common, particularly in cases involving couriers who were deceived, or postal interceptions where the accused denies knowing what the parcel contained.
Key legal points:
- The prosecution must prove you knew, or were aware of a substantial risk, that the substance was a border-controlled drug
- A “mere possibility” of containing a border-controlled drug is not enough for conviction
- This is the most powerful and frequently argued defence in importation matters
- Defences available include: genuine lack of knowledge; honest mistake about the substance; mistaken identity (no evidence you were the perpetrator); the substance was not a border-controlled drug; or the drug did not arrive and remain in Australia
- Note: being willfully blind (deliberately avoiding finding out what you’re carrying) does not constitute a defence, courts will infer knowledge from wilful blindness
4. “I was just a courier / I was doing it for someone else. Does my role matter?”
Clients who were lower-level participants, recruited couriers, people coerced by someone higher up, frequently and rightly ask this.
Key legal points:
- Role is one of the most important sentencing factors in importation cases: R v MacDonnell [2002] NSWCCA 34
- Courts distinguish between: organisers/principals (highest culpability), mid-level participants, and couriers (lowest culpability)
- Even couriers are differentiated from one another based on financial reward: in Seng v R [2007] NSWCCA 335, two couriers on the same flight with the same drugs received meaningfully different sentences because one recruited the other and was paid $30,000–$35,000, while the other received only expenses
- Evidence of coercion, debt bondage, or exploitation by a higher-level organiser is highly mitigating
- Courts have confirmed that deterrence is paramount in drug importation cases: Wong v The Queen (2001) 207 CLR 584
5. “What is a ‘controlled delivery’? What happens if I walk into a trap?”
Increasingly common as the ABF and AFP intercept postal importations and allow them to proceed to the delivery address under surveillance, then arrest whoever collects them.
Key legal points:
- A “controlled delivery” is when authorities intercept the drug and allow it to proceed to its destination under covert surveillance
- The person who collects the package is then arrested
- Charges typically include possession of an unlawfully imported border-controlled drug under s307.5 of the Criminal Code
- The accused often argues: (a) they did not know the contents; or (b) they had a minor role and did not organise the importation
- It is critical to engage a lawyer before any police interview, statements made at the scene are extremely prejudicial
- Cooperation with authorities after arrest can result in significant sentence reductions and is one of the most powerful mitigating tools available
6. “If I cooperate with police and give information about others, will I get a lighter sentence?”
One of the most sensitive and consequential questions asked by importation clients, often raised very early.
Key legal points:
- Cooperation with authorities is a recognised mitigating factor that courts take very seriously
- This can include: providing information to law enforcement, agreeing to be a witness against co-accused, or identifying organisers
- Courts have discretion to apply a discount on sentence in exchange for substantial assistance
- In the most significant cases, the Commonwealth Director of Public Prosecutions (CDPP) may offer a formal reduction in charge or sentence in exchange for an undertaking to assist
- There are significant safety and strategic risks to cooperation — this should never be decided without careful legal advice
7. “What is the difference between ‘marketable quantity’ and ‘commercial quantity’? Why does it matter?”
Clients and their families are confronted with these terms at the bail stage or early in proceedings and are frequently confused.
Key legal points — example quantities from Schedule 4 of the Criminal Code Regulation 2002 (Cth):
|
Drug |
Marketable Quantity |
Commercial Quantity |
|
Cocaine |
2g |
2kg |
|
MDMA (ecstasy) |
0.5g |
500g |
|
Heroin |
2g |
1.5kg |
|
Cannabis |
25kg |
100kg |
|
Methamphetamine |
2g |
750g |
The distinction is critically important because it determines the charge tier, the court, and the applicable maximum penalty
- As noted above, the initial weight used by police often includes packaging and admixtures, the pure weight figure from the drug certificate is what carries the most weight at sentencing
- Challenging whether the quantity meets the threshold for a higher charge tier can have enormous consequences for the sentence range
8. “I ordered something online and it got intercepted by customs. What happens now?”
Increasingly common, postal interceptions of packages ordered online are now a standard ABF operation.
Key legal points:
- Purchasing a border-controlled drug online and having it mailed to an Australian address constitutes importation, it does not matter that someone else physically put it on the plane
- The most common charge is possession of an unlawfully imported border-controlled drug under s307.5 of the Criminal Code
- In many postal interception cases, the defence is that: you did not know what was in the package; the address is not yours (mistaken identity); or you did not knowingly receive it
- The ABF routinely monitors high-risk postal addresses and can conduct controlled deliveries
- Even for personal-use quantities, this is a Commonwealth offence, there is no option of a state diversion program
9. “This is a federal offence, is that different from a state drug charge?”
Many clients do not understand the jurisdiction distinction and are alarmed when they hear “Commonwealth” charges.
Key legal points:
- Yes, drug importation is prosecuted under the Criminal Code Act 1995 (Cth), not NSW state law
- It is prosecuted by the Commonwealth Director of Public Prosecutions (CDPP), not the NSW DPP
- The Division 307 importation offences are strictly indictable and must be finalised in the District Court or Supreme Court
- Commonwealth sentencing principles apply, including that deterrence receives “chief weight” in importation cases
- State-based diversion programs (MERIT, Drug Court referral, CINs) are not available for federal importation charges
10. “Can I get bail? What are my chances?”
Almost always the first question asked by the client’s family or support person.
Key legal points:
- Bail for importation charges, especially at marketable or commercial quantity, is not automatic and is frequently contested by the CDPP
- Courts will consider: the seriousness of the charge, strength of the prosecution case, flight risk (particularly for foreign nationals), prior history, ties to the community, and proposed conditions
- Conditions commonly imposed include: surrender of passport, daily reporting to police, residential conditions, and surety requirements
- An experienced lawyer must appear promptly to make bail representations, O’Brien’s drug defence lawyers specifically offer bail applications as part of their drug offence service.
Read our other part of this series: Most Common Client Questions About Drug Possession In NSW.
Need A Lawyer For Drug Importation Charges?
At O’Brien Criminal & Civil Solicitors, we have helped our clients walk away without a conviction.The sooner you speak to us, the more options you have.
- Call 02 9261 4281 for a free, confidential consultation,
- Or submit your enquiry online.
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