(a) sentenced to a period of imprisonment that exceeds the period set out in subsection (1); or
(b) fined an amount that exceeds the amount set out in subsection (1).
(5) Subsection (3) does not limit:
(a) Part 1B of the Crimes Act 1914; or
(b) section 68 or 79 of the Judiciary Act 1903; or
(c) any other law that provides for a law of a State or Territory to apply in relation to the exercise of federal jurisdiction.
308.2 Possessing controlled precursors
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the person intends to use any of the substance to manufacture a controlled drug; and
(c) the substance is a controlled precursor.
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
(2) The fault element for paragraph (1)(c) is recklessness.
(3) For the purposes of proving an offence against subsection (1), if:
(a) a person possessed a substance; and
(b) a law of the Commonwealth or of a State or Territory required the possession to be authorised (however described); and
(c) the possession was not so authorised;
the person is taken to have possessed the substance with the intention of using some or all of the substance to manufacture a controlled drug.
(4) Subsection (3) does not apply if the person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).
308.3 Possessing plant material, equipment or instructions for commercial cultivation of controlled plants
A person commits an offence if:
(a) the person possesses a plant, a product of a plant, any equipment or any document containing instructions for growing a plant; and
(b) the person intends to use the plant, product, equipment or document to cultivate a controlled plant; and
(c) the person intends to sell, or believes that another person intends to sell, any of the plant so cultivated or any of its products.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.
308.4 Possessing substance, equipment or instructions for commercial manufacture of controlled drugs
(1) A person commits an offence if:
(a) the person possesses any substance (other than a controlled precursor), any equipment or any document containing instructions for manufacturing a controlled drug; and
(b) the person intends to use the substance, equipment or document to manufacture a controlled drug; and
(c) the person intends to sell, or believes that another person intends to sell, any of the drug so manufactured.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.
(2) For the purposes of proving an offence against subsection (1), if:
(a) a person possessed a tablet press; and
(b) a law of the Commonwealth or of a State or Territory required the possession to be authorised (however described); and
(c) the possession was not so authorised;
the person is taken to have possessed the tablet press with the intention of using it to manufacture a controlled drug.
(3) Subsection (2) does not apply if the person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).
Division 309—Drug offences involving children
309.1 Children not criminally responsible for offences against this Division
A child is not criminally responsible for an offence against this Division.
Note: For the purposes of this Part, a child is an individual under 18 years of age (see section 300.2).
309.2 Supplying controlled drugs to children
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug.
Penalty: Imprisonment for 15 years or 3,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.3 Supplying marketable quantities of controlled drugs to children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the quantity supplied is a marketable quantity; and
(e) the person supplies the controlled drug believing that the child intends to sell any of it.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
309.4 Supplying controlled drugs to children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the person supplies the controlled drug believing that the child intends to sell any of it.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.5 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against section 309.3 or 309.4, if a person has supplied a trafficable quantity of a substance to a child, the person is taken to have done so believing that the child intended to sell some or all of it.
(2) Subsection (1) does not apply if the person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
309.6 Meaning of procures an individual to traffic
(1) For the purposes of this Part, a person procures an individual to traffic in a substance if:
(a) the person procures the individual to sell the substance; or
(b) the person, with the intention of selling any of the substance or believing that another person intends to sell any of the substance, procures the individual to prepare the substance for supply or to transport the substance; or
(c) the person, with the intention of selling any of the substance or assisting another person to sell any of the substance, procures the individual to guard or conceal the substance.
(2) For the purposes of paragraph (1)(b), preparing a substance for supply includes packaging the substance or separating the substance into discrete units.
309.7 Procuring children for trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual to traffic in a quantity of a substance; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the quantity is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
309.8 Procuring children for trafficking controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual to traffic in a substance; and
(b) the individual is a child; and
(c) the substance is a controlled drug.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.9 Meaning of procures an individual to pre‑traffic
For the purposes of this Part, a person procures an individual to pre‑traffic in a substance if the person procures the individual to sell the substance believing that the person to whom the substance is sold intends to use any of the substance to manufacture a controlled drug.
309.10 Procuring children for pre‑trafficking marketable quantities of controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to pre‑traffic in a quantity of a substance; and
(b) the individual is a child; and
(c) the substance is a controlled precursor; and
(d) the quantity is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
309.11 Procuring children for pre‑trafficking controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to pre‑traffic in a substance; and
(b) the individual is a child; and
(c) the substance is a controlled precursor.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.12 Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) the individual is a child; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
(5) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
Note 1: A defendant bears a legal burden in relation to the matters in subsection (5) (see section 13.4).
Note 2: A person who does not commit an offence against this section because he or she proves the matters in subsection (5) may, however, have committed an offence against section 309.2 (supplying controlled drugs to children).
309.13 Procuring children for importing or exporting border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) the individual is a child; and
(c) the substance is a border controlled drug or border controlled plant.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
Note 1: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
Note 2: A person who does not commit an offence against this section because he or she proves the matters in subsection (4) may, however, have committed an offence against section 309.2 (supplying controlled drugs to children).
309.14 Procuring children for importing or exporting marketable quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) either or both of the following apply:
(i) the person intends to use any of the substance to manufacture a controlled drug;
(ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and
(c) the individual is a child; and
(d) the substance is a border controlled precursor; and
(e) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d) is recklessness.
(4) Absolute liability applies to paragraph (1)(e).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(e).
(5) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the person proves that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the person proves that, although he or she believed that the other person intended to use the substance to manufacture a controlled drug, he or she did not intend to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation to the matters in subsection (5) (see section 13.4).
309.15 Procuring children for importing or exporting border controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) either or both of the following apply:
(i) the person intends to use any of the substance to manufacture a controlled drug;
(ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and
(c) the individual is a child; and
(d) the substance is a border controlled precursor.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d) is recklessness.
(4) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the person proves that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the person proves that, although he or she believed that the other person intended to use the substance to manufacture a controlled drug, he or she did not intend to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
Division 310—Harm and danger to children under 14 from serious drug offences
310.1 Children not criminally responsible for offences against this Division
A child is not criminally responsible for an offence against this Division.
Note: For the purposes of this Part, a child is an individual under 18 years of age (see section 300.2).
310.2 Danger from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct gives rise to a danger of serious harm to an individual; and
(c) the individual is under 14 years of age; and
(d) the danger exists because the individual is exposed to the manufacture of a controlled drug or a controlled precursor; and
(e) the manufacture is an offence against this Part, or would be an offence against this Part if the manufacture were for a commercial purpose (see section 305.2).
Penalty: Imprisonment for 9 years or 1,800 penalty units, or both.
Note: A person can commit an offence against subsection (1) without being involved in the unlawful manufacture of controlled drugs or controlled precursors. The person need only expose a child under 14 to the danger of serious harm from such manufacture.
(2) Strict liability applies to paragraphs (1)(c) and (e).
(3) For the purposes of subsection (1), if a person’s conduct exposes another person to the risk of catching a disease that may give rise to a danger of serious harm to the other person, the conduct is taken to give rise to a danger of serious harm to the other person.
(4) For the purposes of subsection (1), a person’s conduct gives rise to a danger of serious harm if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of serious harm.
(5) For the purposes of subsection (1), a person’s conduct may give rise to a danger of serious harm whatever the statistical or arithmetical calculation of the degree of risk of serious harm involved.
(6) In a prosecution for an offence against subsection (1), it is not necessary to prove:
(a) that a person was actually placed in danger of serious harm by the conduct concerned; or
(b) that a particular person committed the offence mentioned in paragraph (1)(e).
(7) If, in a prosecution for an offence against subsection (1), the conduct of the defendant for the purposes of paragraph (1)(a) is alleged to be an omission, the fault element for that omission is recklessness.
310.3 Harm from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes harm to an individual; and
(c) the individual is under 14 years of age; and
(d) the harm is caused because the individual is exposed to the manufacture of a controlled drug or a controlled precursor; and
(e) the manufacture is an offence against this Part, or would be an offence against this Part if the manufacture were for a commercial purpose (see section 305.2).
Penalty: Imprisonment for 9 years or 1,800 penalty units, or both.
Note: A person can commit an offence against this section without being involved in the unlawful manufacture of controlled drugs or controlled precursors. The person need only cause harm to a child under 14 by exposing the child to such manufacture.
(2) Strict liability applies to paragraphs (1)(c) and (e).
(3) In a prosecution for an offence against subsection (1), it is not necessary to prove that a particular person committed the offence mentioned in paragraph (1)(e).