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 pretrafficking, 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
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):
Quantity level
Low-level trafficable
Mid-level trafficable
High-range trafficable
Low-range commercial
Substantial commercial
Weight
Guideline (head sentence)
5–7 yrs
6–9 yrs
2 gm – 200 gm
200 gm – 1 kg
Heroin 1 kg – 1.5 kg / Cocaine 1 kg –
7–10 yrs
2 kg
Heroin 1.5 kg – 3.5 kg / Cocaine 2 kg
8–12 yrs
– 3.5 kg
3.5 kg – 10 kg
10–15 yrs
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