Possessing Unlawfully Imported Border Controlled Drugs or Border Controlled Plants

Police Interview

The Australian Federal Police will most likely interview you if they think you have committed this offence. We can provide advice on how to best conduct yourself in the interview and advise you on how to prepare. Going in for a police interview can be stressful and it is important to seek advice to prepare you before you go in to the interview. Always remember you have the right to give a ‘no comment’ interview.

Pleading Not Guilty

This is a complex offence and you may think the evidence against you does not prove the charge. We can help you work through this and consider things such as:

• Is there any evidence that you knew the drug or plant was unlawfully imported?
• What is the quantity of the drugs or plant police say they found on you?

Pleading Guilty

If the evidence against you is overwhelming, you might decide to plead guilty to this charge. It is still important to engage a lawyer to assist you if you decide to do this. We can help you by putting together a plea for you and collecting supporting material. We would also closely analyse the details of your case and put your best case forward in a plea submission.

Which court will the case be heard in?

This charge would be heard in the County Court.

Examples of Possessing Unlawfully Imported Border Controlled Drugs or Border Controlled Plants

• A person meets an acquaintance in a car park who has just arrived home from Thailand. They hand their acquaintance a package containing opium. Customs are aware that there is opium in the luggage and federal police have been monitoring since their arrival. They then intercept both parties as they leave the car park.
• A package is intercepted by customs containing liquid Gamma-hydroxybutyrate (GHB) ordered from China. Federal Officers posing as delivery people drop the package off at the destination address and subsequently address the addressee.

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

Possessing Unlawfully Imported Border-controlled Drugs or Border-controlled Plants

1. A person commits an offence if:
   1. the person possesses a substance; and
   2. the substance was unlawfully imported; and
   3. the substance is a border-controlled drug or border-controlled plant, other than a determined border-controlled drug or a determined border controlled plant.
   Penalty: Imprisonment for 2 years or 400 penalty units, or both.
2. Absolute liability applies to paragraph (1)(b).
3. The fault element for paragraph (1)(c) is recklessness.
4. Subsection (1) does not apply if the person proves that he or she did not know that the border-controlled drug or border-controlled plant was unlawfully imported.

Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).¹

“Have you been caught in possession of a border controlled substance?”

Legislation

The legislation for this offence can be found on section 307.7 of Criminal Code Act 1995.

Elements of the offence

In essence to prove this charge the Prosecution must show that the accused possessed a substance either directly or indirectly, that the substance was unlawfully imported and the substance is a border controlled drug or border controlled plant.

It is important to note that you can be reckless as to the possession of the substance. This means that if you ought to have known you were in possession of a controlled substance, or a reasonable person in the circumstances would have known, then you can be found guilty.

“Have you been caught in possession of a border controlled substance?”

Defences

Defences to this could be that the accused did not possess a substance, that the substance was not imported, or that the accused did not know that the border controlled drug or border controlled plant was unlawfully imported. Other defences include mental impairment, duress, honest and reasonable mistake of belief, impossibility, lack of intent, the concept of beyond reasonable doubt, and other forms of factual errors.

You should ring us and discuss your case 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.

Questions in cases like this

• Were you possession of the substance?
• Was the substance unlawfully imported?
• Did you or should you have known that it was border-controlled?

Maximum penalty for section 307.7 of the Commonwealth Criminal Code

Any person found guilty of Possessing Unlawfully Imported Border Controlled Drugs or Border Controlled Plants (s307.7 of the Commonwealth Criminal Code) may be sentenced to an imprisonment for 2 years or to a fine of 400 penalty units ($64,476 at the time of print) or both.

Other important resources

• Criminal Code Act 1995: Possessing Unlawfully Imported Border Controlled Drugs Or Border Controlled Plants (p. 476)
• The Law and Your Rights – Information on Border Controlled Drugs and Quantities

_{[1] Criminal Code Act 1995 s 307.7}