The Law, Penalties and Defences for Possessing a Commercial Quantity of Unlawfully Imported Border Controlled Drug

by Sonia Hickey & Ugur Nedim
Bag of heroin

A Sydney man arrested and charged with possessing a commercial quantity of unlawfully imported border controlled drugs has been released on a $1 million security for bail. 

Police allege that Wade Habkouk, who is the CEO and director of a construction company, is the mastermind behind a plan to import 347 kilograms of heroin into Australia. 

Police say this much heroin could have produced more than 1 million street deals and netted $156 million. 

Suspicious packages from Kuala Lumpur 

The story of how Mr Habkouk was arrested began just days before Christmas in 2020 when Border Force authorities became suspicious of two packages labelled ‘vertical construction mixers’ which had been brought into Australia from Kuala Lumpur. 

X-rays of the packages revealed two metal cases insides, each containing more than 100 kilograms of heroin. 

Authorities removed the drugs, and the mixers went on to be delivered to Mr Habkouk’s business in Hornsby on the Upper North Shore of Sydney, in February 2021.

Police allege that under surveillance they saw Mr Habkouk visit the storage facility where the mixers were delivered, with a suitcase full of counter-surveillance devices, in an attempt to determine if authorities had been investigating the shipment. 

Police allege they observed Mr Habkouk alone inside the unit and heard the sounds of metal being cut, which they believe was in an attempt to ascertain if the heroin was in the machinery. 

Investigations are continuing 

New South Wales Police, in conjunction with the Australian Border Force, continued to investigate and six months after the drugs were detected Mr Habkouk was arrested and charged with one count of attempting to possess a commercial quantity of a border-controlled drug. 

At the time he did not apply for bail, and it was not granted. He remained on remand in Silverwater Correctional Centre until earlier this year when family members were able to provide $1million in surety for his release on bail. 

Conditions of Mr Habkouk’s bail include that he reports daily to police, surrenders his passport, only leave shome in the company of his wife, and does not communicate with a number of other people police believe are witnesses to, or have been involved in, the operation, including Mr Habkouk’s brother. 

The case remains before the courts.  

Possessing a Commercial Quantity of Unlawfully Imported Border Controlled Drug

Possessing a commercial quantity of an unlawfully imported border controlled drug or plant is an offence under Section 307.5 of the Criminal Code Act 1995 which carries a maximum penalty of life in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You possessed a substance,
  2. The substance was unlawfully imported,
  3. The substance was a border controlled drug or plant,
  4. You knew, or were reckless as to whether, the substance was a border controlled drug or plant, and
  5. The amount possessed was the commercial quantity.

You were ‘reckless’ if you were aware it was likely that the substance was a border controlled drug or plant but went ahead with your actions regardless.

You are not guilty of the offence if you are able to establish, ‘on the balance of probabilities’, that you did not know the substance was unlawfully imported.

Examples of ‘commercial quantity’ include:

  • At least 500 grams of MDMA (or ‘ecstasy’),
  • At least 750 grams of amphetamines,
  • At least 1.5 kgs of heroin,
  • At least 2 kgs of cocaine, or
  • At least 100 kgs of cannabis leaf

Legal defence

A complete legal defence to the charge is ‘duress’, which is where:

  1. Your actions were due to a threat of death or serious injury to you and/or a member of your family,
  2. There was no reasonable way to render the threat ineffective, and
  3. Your conduct was a reasonable response to the threat.

In the event evidence is raised of the defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence is not made out.

If the prosecution is unable to do this, you must be found not guilty of the charge.

Going to court for a commercial drug case?

If you or a loved-one has been accused of a serious drug offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a consultation with a specialist criminal lawyer who is vastly experienced in defending and winning commercial drug cases.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 24 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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