A significant amount of work is conducted by the CDPP in relation to the prosecution of serious drug offences, particularly offences involving the importation of drugs and precursors. The interception of illicit drugs and precursors at the border prevents them from entering the Australian community. Precursors are substances that are used to manufacture drugs and are an essential part of the production process for illicit drugs. Drug and precursor offences are among the most serious Commonwealth offences and attract substantial penalties under Part 9.1 of the Criminal Code, including imprisonment for life for offences involving the importation a commercial quantity of a border controlled drug.
There are a range of other serious drug offences in the Criminal Code including trafficking and the commercial manufacture of controlled drugs as well as the pre-trafficking in controlled precursors. The CDPP also prosecutes State and Territory drug offences, usually where the investigation involves a Commonwealth agency and it is appropriate for the CDPP to conduct the prosecution.
Commonwealth serious drug offences apply to a long list of illicit substances including:
- Gammabutyrolactone (GBL)
- Ecstasy (MDMA)
- Precursor chemicals such as pseudoephedrine
There are also provisions in the Criminal Code which extend the schedules of controlled and border controlled drugs to include substances that are analogues to those drugs listed. Drug analogues are substances that have a similar chemical structure to a drug that is listed. There are also provisions which extend the definition of controlled and border controlled precursors to include substances that are salts, esters, and immediate precursors of the precursors listed.
Serious drug offences, particularly importations, are rarely committed by one person on their own. In most cases importations involve multiple players participating in the venture at different levels and in different ways. Consequently, we often have to rely upon extension of criminal liability provisions involving s conspiracy, joint commission or accessorial liability in order to prosecute all those involved in an importation.
Over the past 5 years the CDPP has seen increased serious drugs prosecutions. In 2012-2013 we dealt with 394 serious drug charges.
There has also been an increase in the number of precursor matters that the CDPP has dealt with, particularly involving the importation of pseudoephedrine, a precursor required in the manufacture of methlamphetamine or ‘ice’. In 2012-2013 we dealt with 43 precursor charges under the Criminal Code. These figures do not include the large number of matters involving precursors that the CDPP has prosecuted under the Customs Act 1901 or State and Territory legislation.
We are seeing a wide spectrum of importation methodologies relating to precursors – ranging from smaller quantities being imported through the mail (often several kilograms at a time) through to the sophisticated planning of importations of hundreds of kilograms or several tonnes of precursors imported via shipping containers.
Serious drug prosecutions can be helpfully divided into 4 main categories:
The level of penalty associated with serious drug offences generally depends on the quantity of the illicit substance involved. There are three tiers of quantities used in the Criminal Code:
- Commercial quantity (the largest, usually measured in kilograms)
- Marketable quantity (in grams)
- Trafficable quantity (in grams, but less than a marketable amount)
The penalties range from 2 years imprisonment for basic possession offences, through to life imprisonment for trafficking or importing/exporting commercial quantities of a border controlled drug.
Other Relevant Offences
Additional offences relating to the importation of non-narcotic drugs, specified chemical compounds and specified performance enhancing substances also exist under the Customs Act, though the penalties are significantly less than for a prosecution under the Criminal Code provisions.
The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/
- Adams v R (2008) 234 CLR 143
- Campbell v R (2008) 73 NSWLR 272
- Onourah v R (2009) 76 NSWLR 1
- R v Nolan (2012) 267 FLR 1
- Beqiri v R (2013) 271 FLR 220
- Calderwood v R (2007) 172 A Crim R 208
- R v Tranter  SASCFC 61
- Weng v R  VSCA 221
Director’s Litigation Instructions
Practice Group Instructions (PGI)
PGI IIE/OCCT No. 1 – Charging Guideline for serious drug offences under Part 9.1 of the Criminal Code
On 29 May 2013 the Criminal Code Amendment Regulation 2013 (No. 1) commenced. This amendment significantly expanded the schedules of controlled and border controlled drugs and moved the schedules from the Criminal Code to the Criminal Code Regulations. This allows for illicit substances to be listed more quickly and improves the Commonwealth’s ability to be responsive as illicit markets evolve.