The Law Handbook 2024

148 SECTION 3: Fines, infringements and criminal law Import and export of border-controlled precursors In division 307 of the Criminal Code, there are offences for the importation or exportation of border-controlled precursors with the intention of manufacturing a controlled drug. The Criminal Code Regulations 2002 (Cth) list border-controlled precursors and set out quantities relevant to the various offences. The penaltywhere a commercial quantity is involved is 25 years’ imprisonment, or a fine of 5000 pu, or both. Where a marketable quantity is involved, the penalty is 15 years’ imprisonment, or a fine of 3000 pu, or both. There is a further offence where any quantity is involved and this carries a penalty of seven years’ imprisonment, or a fine of 1400 pu, or both. The quantities for a commercial and a marketable quantity are based on the amount of precursor necessary to manufacture the corresponding amount of border-controlled drug. A person commits an offence when they import or export a border-controlled precursor and either or both of the following apply: • the person intends to use any of the substance to manufacture a controlled drug; or • the person believes another person intends to use the substance to manufacture a controlled drug. Presumptions Part 9.1 of the Criminal Code contains evidentiary presumptions in relation to the above offences in section307.14.WhereaCommonwealthlawrequiresthe import or export to be authorised but it isn’t, the person is taken tohave importedor exported the substancewith the intention of using some or all of the substance to manufacture a controlled drug and a belief that another intended to manufacture a controlled drug. However, these presumptions do not apply if the person proves on the balance of probabilities that they did not have that intention or belief. To establish a precursor importation offence, the accused must have intended to use the precursor to manufacture a controlled drug and/or believed that another person intended to use the precursor to manufacture a controlled drug. Drug offences involving children There are offences in division 309 of the Criminal Code directed at adults who involve children under 18 years of age in the drug trade. As well as a range of domestic offences, these include the offences in sections 309.7 to 309.15 relating to procuring a child to pre-traffic precursors, or import controlled drugs or border-controlled precursors. Pre-trafficking is defined in section 306.1 and includes selling the substance believing that the person to whom it is sold, or another person, intends to use any of the substance to manufacture a controlled drug. Combining quantities of drugs or precursors Division 311 of the Criminal Code enables charges to be brought on the basis of combined quantities of drugs or combined amounts of precursors in certain situations. Separate trafficking transactions on the same occasion may be charged together. Quantities of drugs imported or trafficked or quantities of precursors that are pre-trafficked, on different occasions, can be charged together where it can be shown that the person is carrying on a business. Quantities of drugs or quantities of precursors can also be charged together when there are frequent offences involving smaller quantities. The Criminal Code has restrictions as to what may be combined in a charge. Selling (i.e. trafficking) smaller parcels of drugs requires each transaction to be within seven days of another, and where several importations are involved, they must be within 30 days of each other. The prosecution must make it clear that it intends to rely on these provisions and a description of the conduct alleged must be set out in the charge or provided to the accused within a reasonable time before the proceedings. There are also provisions for combining different types of drugs. For example, an accused who sells half a commercial quantity of heroin and half a commercial quantity of cocaine can be prosecuted for trafficking a commercial quantity of controlled drugs. Defences Division 313 of the Criminal Code provides total or partial defences to the serious drug trafficking and importation offences set out in Part 9.1 of the Criminal Code. A person is not criminally responsible for a Part 9.1 offence if, at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by a federal or state