Steve needs to make some fast money. He meets an old friend, Bob, on a recent trip to Thailand who invites him to join him in his importation business, Bob’s Dog Food. Steve soon discovers that Steve’s ‘business’ involves importing heroin in packaged dry dog food but agrees to become Bob’s partner in the enterprise. He is soon making monthly ‘business’ trips to Thailand to organize consignments. The Australian Federal Police (AFP) have become suspicious of Steve and Bob’s activities for some time and believe that Steve intends to bring in a particularly large consignment. In a joint Australian/Thailand operation, an undercover operative makes contact with Steve, arranging for him to organize the shipping of 60 kgs heroin. The heroin is supplied by the Thai government and both Customs services have been warned to allow Steve and the shipment of dog food through.
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On arrival, X rays of the goods reveal small packages amongst loose dry dog food. The goods are then transferred to a truck, which is driven by Steve. The AFP follows the truck to the rear of a building, where they intercept Steve as he begins to unload the goods. When the police open the packaged dog food, however, they discover that the small packages contain saffron- a very expensive spice. The AFP then searches the building and find a small crop of hydroponic cannabis in a small room. The room is locked but the police find the key in Steve’s possession. There are 50 plants. The building is the storage facility for bob Dog Food and is owned by Bob’s uncle.
What Offences Could Steve be Charged With Under State and Federal Legislation?
Under federal drug offenses, Steve could be charged with the illegal importation of drugs into Australia. This violates the SDO Act. The present Act is an updated version of the Customs Act that was repealed in 2005. Under the Customs Act, the trafficking or importation of drugs is a serious offense, as spelled out by section 9.1 of the Commonwealth Criminal Code. Under the export/import offenses, Steve could be charged with a violation of this law because he was found in possession of unlawful substances, in this case, heroine. Australia’s law on drug trafficking stipulate that possession of drugs include “control, of custody of a substance that has been classified as harmful drug” (Australian drug Foundation, 2011). This means that possessions are defined as having drugs with oneself or in the custody of personal property. This charge can only be dropped if it is proved in a court of law that the drug (especially) the one in a person’s property did not belong to the person and the person did not know that there were drugs in their property.
The Australian National Drug Strategy gives a universal structure regarding drug offenses, drug problems as well as other associated penalties at the territorial or state jurisdiction level. One of the most important features of the Australian drug laws that need to be taken into consideration is the application of provisions that disregards the conventional principle. For instance, the 1986 Drugs Misuse Act (Queensland) holds a “deeming provision” about any offense associated with the possession of illegal drugs, such as heroin. According to this act, should the law enforcement officers find prohibited drugs in an individual’s premises, this is taken as a form of conclusive evidence that indeed, the occupier had the drugs in question. The storage facility for Bob Dog Food was found to contain 50 plants of a heroine of which he had the key. The only exception to this is if the individual in question is in a position to persuade the court beyond any reasonable doubt that he/she had no knowledge or suspected that such drugs could be on the premises. On this front, Steve could be charged with the illegal possession of heroin, unless he can convince the court that he had no knowledge of the existence of such drugs on the premises. This may prove to be a tough case for Steve because he had keys to the premises (Parliament of Australia, 2010).
Different jurisdictions in Australia have also decriminalized the cultivation or possession of small quantities of such drugs as heroin. As such, Steve would have been deemed to contrive both the state and federal laws. In such jurisdiction as Western Australia, South Australia, and the northern territory, the police are mandated to issue expiation infringement if an when an individual is discovered to be either growing or in possession of small quantities of heroin. The shipped consignment that Steve was found in possession of did not contain any heroin, but an expensive spice (saffron). However, Steve had agreed to import heroin into Australia. The law states that “conspiring to sell, entering into any agreements to sell or even preparing to sell any substance classified as a drug” is a serious drug trafficking offense that has a maximum sentence of life imprisonment and or with a $500,000 fine (Australian Drug Foundation, 2011). The prosecution may fail to provide evidence that he imported the drugs found in his possession into the country. However, he will be charged with conspiring to traffick the said substance as he had agreed to do.
Does Steve Have Any Defenses about any Federal Offences with which he may Charge? Is the Involvement of the Australia and Thailand Governments Relevant? Why/Why Not?
This case is full of a legal loophole that Steve can utilize to his advantage. Steve’s defense on the case could be built on several arguments. First, he could argue that no drugs were found on him and that the suspected imported consignment was a spice, Saffron. This can be proved beyond any doubt. He could build on this argument and explain that he intended to store the spice in his uncle’s facility, which beyond his knowledge contained small quantities of cannabis. The fact that he had the keys does not conclude that he had known about cannabis.
Besides, Steve could ague under section s.235 of the 1901 Commonwealth Customs Act to prove beyond any reasonable doubt that he had no intention whatsoever to enter into any commercial dealings for the importation of any drug substance. These acts claim that a person can be imprisoned for a person for up to 3 years. However, Steve can argue that the only illegal substance that he had any intention of selling was saffron, the spice he was found possessing. The cannabis in the warehouse that he intended to store his spice was not for sale as far as he was concerned (Australasian Legal Information Institute, n.d.).
Australians criminal code also stipulates that a person is liable to imprisonment if he/she conspired to commit a crime. The person is only punishable if the offense in which they contrived to commit has already been committed. In this case, Steve is not guilty as there is no proof that import drugs happened.
The involvement of Thai and Australian governments could add weight to his claim of innocence as far as drug trafficking offense is concerned. He can claim that he was coerced to import the drugs by the government and that he was under the “mistaken belief that importing the drug was above board and that it was excusable and justifiable by the law” (Winfrod, 2011). His intention to import the drugs was informed by the fact that he believed that it was for a good course as the Thai and Australian government were his main dealers. The Thai government was to supply the drugs while the Australian turned a blind customs eye at the airport, and allowed his consignment (the spice Saffron, and not heroin) to pass without inspection. He was thus testing whether the alleged trafficking was for a good cause before committing himself to import (not traffic) the drug. Steve can further this defense argument by claiming that the governments were either using him as a conduit or wanted to set trap for him. He can put the governments to a task (especially the Thai) to explain the intention of wanting him to buy the cocaine from it and export it to Australia.
Australian Drug Foundation, (2009.). Drug laws. Drug Info. Web.
Australasian Legal Information Institute (n.d.). Crimes (traffic in narcotic drugs and psychotropic substances) act 1990 – SECT 15. Commonwealth Consolidated Acts. Web.
Parliament of Australia, (2010). Criminal law. Parliamentary law. Web.
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Winfrod, S. (2011). Federal offences. The Law Handbook. Web.