Commonwealth Drug Offences By Ashleigh Kwong & Nikita Ash

History of Drug Offences in Australia 6 December 2005 – new offences created and inserted into the Schedule of the Criminal Code Act 1995 (Cth) Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth). New offences were created to target pre- trafficking, possessing, import/export of substances used to make illicit drugs New offences also created to protect children; supplying to children, exposing a child under 14 to danger or harm from drug manufacturing

Statutory Offences under Pt 9.1 Criminal Code (Cth) include: Div 302: Trafficking controlled drugs Div 303: Commercial cultivation of controlled plants Div 304: Selling controlled plants Div 305: Commercial manufacture of controlled drugs Div 306: Pre-trafficking controlled precursors Div 307: Import-export offences Div 308: Possession offences Div 309: Drug offences involving children Div 310: Harm and danger to children under 14 from serious drug offences Div 311: Combining quantities of drugs, plants or precursors.

Common Features of the Offence Features of drug offences that differentiate cases and affect sentencing include; Quantity of drug involved Purity of drug involved Offender’s knowledge of imported substance Offender’s role in importation/trafficking (distinguishing between couriers and ‘principals’) Offender’s potential gain Sentence as a deterrent for future criminals and offender

Sentencing guidelines Quantity levelWeightGuideline (head sentence) Low-level trafficable2 gm – 200 gm5–7 yrs Mid-level trafficable200 gm – 1 kg6–9 yrs High-range trafficable Heroin 1 kg – 1.5 kg / Cocaine 1 kg – 2 kg 7–10 yrs Low-range commercial Heroin 1.5 kg – 3.5 kg / Cocaine 2 kg – 3.5 kg 8–12 yrs Substantial commercial3.5 kg – 10 kg10–15 yrs In R v Wong and Leung (1999), the Court of Criminal Appeal created a comprehensive sentencing guideline for the importation of heroin and cocaine. For couriers and low-level members of the importing organization, the following guideline is applied for the most common offences (heroin and cocaine related): Sentences outside the range may frequently occur when the offender provides substantial assistance to authorities, or makes a plea of guilty. Couriers and low-level offenders are treated less harshly by the law as they have no decision-making power and usually have less to gain by their actions. In Wong v The Queen (2001) the High Court overturned the guideline as the sole indicator for judges, though it remains useful when determining the seriousness of an offence.

Major Case Law R v Wong and Leung (1999) Criminal Court of Appeal (NSW) establishes guidelines for sentencing Wong v The Queen (2001) High Court overturned the guideline as being all-encompassing as it was established that there was no jurisdiction or power for the court to issue the guideline, and that the weight of drugs imported is not the sole determining factor in the seriousness of a case