Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants

– section 307.6 of the Commonwealth Criminal Code
Cannabis Plants
This Commonwealth charge is generally laid in situations where a person possesses marketable quantity of a substance which is unlawfully imported and is a border-controlled drug or border-controlled plant.
Examples of Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants
  • Having a border-controlled substance, such as cannabis, in a suitcase at an airport;
  • Having a border-controlled substance, such as cannabis, in a shipping container;
Questions in cases like this
  • Were you aware that you were in possession of a marketable quantity of a border-controlled substance?
  • Where was the border-controlled substance located?
  • What is the quantity of the border-controlled substance?
What are some of the possible defences to Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants?

The following defences are available to a person charged with this offence:

  1. Lack of knowledge;
  2. The accused did not possess the substance; or
  3. There is a factual dispute as to the quantity of the substance imported.

You should call us and discuss your case with one of our experienced lawyers if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

Fine
Any person found guilty of this charge may be sentences to a maximum penalty of imprisonment for 25 years or a fine of 5,000 penalty units, or both. This offence is typically dealt with in the County Court of Victoria.

What is the legal definition of Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants?

Section 301.4 of the Criminal Code defines a ‘border-controlled drug’ as:

a substance, other than a growing plant, that is:

  1. listed by a regulation as a border-controlled drug; or
  2. a drug analogue of a listed border-controlled drug; or
  3. determined by the AFP Minister as a border-controlled drug under section 301.13 (which deals with emergency determinations of serious drugs)
“Can the Prosecution prove that you were in possession of a marketable quantity of a controlled substance?”
Legislation

The legislation for this offence can be found on section 307.6 of Criminal Code Act 1995.

Elements of the offence

The Prosecution must prove the following elements beyond reasonable doubt to establish this offence:

  1. the person imports or exports a substance; and
  2. the substance is a border-controlled drug or border-controlled plant; and
  3. the quantity imported or exported is a marketable quantity.

Please note that the burden is on the defence to prove that he/she did not intend to sell the border-controlled substance.

13.5 Standard of proof – defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
 
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Questions the Judge Might Ask the Jury
  1. Are you satisfied that the amount of border-controlled substance was a marketable quantity?
  2. Are you satisfied, on the balance of probabilities, that the accused did not intend to sell the border-controlled substance?
  3. Are you satisfied that the accused was reckless as to the substance being a border-controlled drug or border controlled plant?
  4. Are you satisfied that one drug is a chemical derivative of a listed prohibited drug? It will require expert evidence which will examine matters such as whether one drug can be made from another and whether one drug is structurally related to another (see Daley v Tasmania (2012) 21 Tas R 247; [2012] TASCCA 4; Clegg v Western Australia (No 2) [2017] WASCA 30).1
Other important resources

 



[1] http://www.judicialcollege.vic.edu.au/eManuals/CCB/53811.htm