LWZ114 Lecture Notes - Lecture 12: Harry Gibbs, The Offence, Daryl Dawson
DRUG OFFENCES
DRUG CRIME
Physical elements
❖ S32 Controlled Substances Act 1984 (SA)
❖ S233B Customs Act 1901 (Cth)
➢ (1)(b): Any person who imports, or attempts to import, into Australia any prohibited imports … or
exports, or attempts to export, from Australia any prohibited exports … shall be guilty of an offence.
➢ (1)(c): Any person who, without reasonable excuse (proof whereof shall lie upon him) has in his
possession, or attempts to obtain possession of, any prohibited imports … which have been imported
into Australia in contravention of this Act, shall be guilty of an offence.
▪ He Kaw Teh: Possession involves physical control or custody.
❖ Courts scrutinise the conduct of the accused over time, rather than at a particular time → not necessary to
prove a particular act.
Fault elements
❖ He Kaw Teh v R: Offences in s233B require proof of subjective fault.
➢ S233B(1)(b) requires proof that the accused intended to import a prohibited drug, because:
▪ Words in the section:
• It omits the ‘reasonable excuse’ defence;
▪ Subject matter of the statute:
• The offence is criminal in a real sense;
• Penalty sentence is severe;
• Convicted offender is exposed to obloquy & disgrace;
▪ Whether strict liability assists with enforcement:
• Strict liability will capture luckless victims (travellers who take reasonable care cannot prevent
an importation).
➢ S233B(1)(c) requires proof of knowledge of the existence of the prohibited drug being possessed,
because:
▪ The ordinary meaning of the words ‘has in his possession’ connotes awareness of the thing that was
in fact in the possessor’s physical control.
➢ Detail of knowledge (of the existence of the prohibited import) required:
▪ Dawson J: Knowledge of the presence of something, or its receptacle, is sufficient. He need not
know what it is, nor its qualities.
▪ Brennan J: Knowledge of the nature of the object is required.
▪ Gibbs CJ: Knowledge of a narcotic substance is required.
Penalties for breach of s233B(1): s235 [pure heroin & cocaine]
❖ S235(2)(c): If the offence involves more than a commercial quantity [1.5kg +], the maximum penalty for
the offence is life imprisonment or $750,000 or both.
❖ S235(2)(d): If the offence involves more than a trafficable quantity, but less than a commercial quantity [2g
– less than 1.5kg], the maximum penalty for the offence is 25 years imprisonment or $500,000 or both.
❖ S235(3): If the offence involves more than a trafficable quantity, but less than a commercial quantity [2g –
less than 1.5kg], the maximum penalty for the offence is 2 years imprisonment or $2,000 or both, provided
the offender proves that the offence was undertaken without any commercial motive.
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Document Summary
(1)(b): any person who imports, or attempts to import, into australia any prohibited imports or exports, or attempts to export, from australia any prohibited exports shall be guilty of an offence. Courts scrutinise the conduct of the accused over time, rather than at a particular time not necessary to prove a particular act. He kaw teh v r: offences in s233b require proof of subjective fault. S233b(1)(b) requires proof that the accused intended to import a prohibited drug, because: words in the section: Detail of knowledge (of the existence of the prohibited import) required: dawson j: knowledge of the presence of something, or its receptacle, is sufficient. He need not know what it is, nor its qualities: brennan j: knowledge of the nature of the object is required, gibbs cj: knowledge of a narcotic substance is required. Penalties for breach of s233b(1): s235 [pure heroin & cocaine]
