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Charged with a Customs Offence? What You Need to Know
Customs offences are federal offences under the Customs Act 1901 (Cth). They cover smuggling, importing or exporting prohibited goods, evading duty, and making false statements to the Australian Border Force (ABF). Penalties range from an infringement notice to 10 years imprisonment, depending on the goods and the offence.
A parcel of steroids ordered online, cartons of cigarettes brought back from overseas, a knife or body armour bought from a foreign website, or an undervalued commercial shipment can all lead to a charge.
Some customs offences are strict liability. For those, the prosecution does not need to prove that you intended to break the law. Other offences, such as importing tier 1 or tier 2 goods and illicit tobacco offences, require proof of intention or recklessness.
Customs matters are investigated by the ABF and prosecuted by the Commonwealth Director of Public Prosecutions (CDPP). Because they are Commonwealth offences, sentencing follows the Crimes Act 1914 (Cth).
The Australian Legal Practice represents clients facing customs charges across Burwood, Sydney CBD, and Parramatta. Our lawyers are available 24/7, and the first consultation is free.
Call (02) 8084 9929 to arrange a free consultation with a principal lawyer.
What Is a Customs Offence?
A customs offence is any offence under the Customs Act 1901 (Cth) connected with importing or exporting goods, including the duty payable on them.
The main categories are:
- Smuggling and unlawful importation or exportation (section 233): smuggling goods, or importing or exporting prohibited goods
- Special offences for tier 1 goods (section 233BAA): intentionally importing or exporting certain prohibited goods, such as performance-enhancing steroids
- Special offences for tier 2 goods (section 233BAB): intentionally importing or exporting more dangerous prohibited goods, such as firearms or body armour
- Tobacco offences (section 233BABAD): importing tobacco products to defraud the revenue, or possessing or conveying tobacco imported that way
- Duty and statement offences (section 234): evading duty, obtaining a refund or rebate you are not entitled to, or making a false or misleading statement to a customs officer
Tier 1 and tier 2 goods are prohibited goods listed in the customs regulations:
Category | Examples | Maximum Penalty |
Tier 1 goods (s 233BAA) | Performance-enhancing steroids, including testosterone, nandrolone, trenbolone, boldenone, and drostanolone | 5 years imprisonment and/or 1,000 penalty units |
Tier 2 goods (s 233BAB) | Firearms and munitions, knives and daggers, body armour, anti-personnel sprays, certain chemical compounds, radioactive substances, human body tissue, counterfeit credit or debit cards, and child abuse material | 10 years imprisonment and/or 2,500 penalty units |
Conduct that can result in a customs charge includes:
- Ordering steroids or other prohibited goods online for delivery to Australia
- Bringing undeclared cigarettes or tobacco into Australia
- Buying or holding cigarettes or tobacco that you suspect were smuggled into Australia
- Importing a knife or pepper spray without the required permit
- Undervaluing goods or misdescribing them on an import declaration to reduce duty
Customs offences are distinct from drug importation offences. The importation of border controlled drugs, such as cocaine or methamphetamine, is charged under Division 307 of the Criminal Code Act 1995 (Cth), with penalties up to life imprisonment.
Customs Offences Under Australian Law
Offence | Section | Maximum Penalty |
Smuggling, or importing or exporting prohibited goods | s 233 | 5 times the duty involved, or 1,000 penalty units where the duty cannot be determined; where the value of the goods can be determined, the greater of 3 times their value or 1,000 penalty units |
Importing or exporting tier 1 goods | s 233BAA | 5 years imprisonment and/or 1,000 penalty units |
Importing or exporting tier 2 goods | s 233BAB | 10 years imprisonment and/or 2,500 penalty units |
Importing tobacco intending to defraud the revenue, or possessing or conveying tobacco knowing it was imported that way | s 233BABAD(1) and (2) | 10 years imprisonment and/or 5 times the duty, or 1,000 penalty units where the duty cannot be determined |
Importing, possessing, or conveying tobacco while reckless as to whether the revenue was defrauded | s 233BABAD(2A) and (2B) | 5 years imprisonment and/or 3 times the duty, or 500 penalty units where the duty cannot be determined |
Evading duty | s 234 | Between 2 and 5 times the duty evaded, or 500 penalty units where the duty cannot be determined |
False or misleading statement to a customs officer | s 234 | 250 penalty units |
A Commonwealth penalty unit is currently $330, so a fine of 1,000 penalty units is $330,000. A company can face a fine of up to 5 times the maximum penalty for an individual.
Jurisdiction and court:
- Customs offences are prosecuted by the CDPP after investigation by the ABF
- Indictable customs offences, such as tier 1 offences, are heard in the District Court unless both the CDPP and the accused consent to the matter being dealt with summarily in the Local Court
What Must the Prosecution Prove?
The elements depend on the charge.
For smuggling or unlawful importation under section 233, the prosecution must prove beyond reasonable doubt:
- You smuggled goods, or imported or exported prohibited goods
- The goods were subject to duty, or their importation or exportation was prohibited
Because these offences are strict liability, the prosecution does not need to prove that you knew the goods were prohibited or dutiable.
For tier 1 and tier 2 offences under sections 233BAA and 233BAB, the prosecution must prove:
- You intentionally imported or exported the goods
- The goods were tier 1 or tier 2 goods, and you were reckless as to that fact
- The importation or exportation was prohibited, either absolutely or without a permit or approval you did not hold
For tobacco offences under section 233BABAD, the prosecution must prove:
- You imported, possessed, or conveyed tobacco products
- You intended to defraud the revenue, knew the goods were imported with that intent, or were reckless as to whether the revenue would be defrauded
If the prosecution cannot prove any one of these elements, the court must find you not guilty.
Penalties for Customs Offences in NSW
Customs penalties are calculated on different bases, depending on the offence:
Penalty Basis | Applies To | How It Works |
Multiple of the duty | Smuggling, tobacco, and duty evasion offences | The fine is a multiple of the duty that was or would have been payable, such as 3 or 5 times |
Penalty units | Tier 1 and tier 2 offences, false statements, and offences where duty cannot be calculated | A fixed maximum, such as 1,000 or 2,500 penalty units |
Imprisonment | Tier 1, tier 2, and tobacco offences | Up to 5 or 10 years, alone or with a fine |
Sentencing options available to a court dealing with a federal offender:
- Dismissal without proceeding to conviction (section 19B Crimes Act 1914)
- Conditional release on recognizance, with or without conviction (section 20(1)(a))
- Fine
- Imprisonment with release on recognizance after a specified period (section 20(1)(b))
- Full-time imprisonment, with a recognizance release order or non-parole period
Factors that influence the severity of the penalty:
- The type and quantity of the goods
- The amount of duty evaded
- Whether the goods were for personal use or for sale
- Whether the conduct was planned or involved concealment
- Prior criminal history, particularly for customs or revenue offences
- Cooperation with the ABF and an early guilty plea
Non-custodial outcomes can be available for first-time offenders importing small quantities for personal use. In one reported tobacco case, a 25-year-old who collected 250 cartons of illegally imported cigarettes received a fine and a suspended sentence after a plea in mitigation.
Infringement notices are an alternative to prosecution for some strict liability offences:
- The penalty is capped at 25 per cent of the maximum court penalty
- The cap is 15 penalty units for an individual and 75 penalty units for a body corporate
- Paying the notice is not an admission of guilt or liability
- You can refuse to pay and defend the matter in court if you are prosecuted
Other consequences of a conviction include:
- A criminal record affecting employment and travel
- Immigration consequences for non-citizens under the character test in the Migration Act 1958
Possible Defences Against Customs Offences
Several defences can result in a customs charge being dismissed or withdrawn.
- Honest and reasonable mistake of fact: for strict liability offences, you held an honest and reasonable belief that the goods were not prohibited or that no duty applied
- No intention or recklessness: for tier 1, tier 2, and tobacco offences, you did not intend to import the goods or were not aware of a substantial risk about their nature
- Permit or approval: you held the permit or approval required to import or export the goods
- Goods not prohibited: the goods do not fall within the tier 1, tier 2, or prohibited goods categories, which can be tested through forensic or expert analysis
- No connection to the goods: the parcel or shipment was sent to you without your knowledge or request
- Duress: you were forced to act by threats of serious harm from another person
Every defence is assessed on the specific facts, including import declarations, online orders and messages, delivery records, forensic testing of the goods, and any admissions made during an ABF interview.
Your Options When Charged with a Customs Offence
Option | What It Means |
Negotiate with the prosecution | Where intention or the classification of the goods is contestable, representations to the CDPP can result in the charge being withdrawn or replaced with a less serious offence |
Plead not guilty | Contest the charge at a hearing or trial, where the prosecution must prove every element beyond reasonable doubt and a mistake of fact defence can be raised |
Plead guilty and seek the best outcome | An early guilty plea is taken into account at sentencing; evidence of personal use and cooperation with the ABF can support a dismissal or conditional release without conviction |
Why Choose The Australian Legal Practice for Customs Offences
- Principal-level representation. You deal directly with an experienced senior lawyer
- 24/7 availability on (02) 8084 9929, so you can get advice as soon as the ABF contacts you
- Three Sydney offices: Burwood, Sydney CBD, and Parramatta
- Free initial consultation so you can understand the charge and the realistic outcomes
- Fixed-fee arrangements available for customs matters finalised in the Local Court
- Familiarity with Commonwealth sentencing law under the Crimes Act 1914 (Cth), which differs from NSW state sentencing
- Advice on responding to ABF letters and infringement notices before a matter reaches court
Call (02) 8084 9929 to arrange a free consultation with a principal lawyer.
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Frequently Asked Questions About Customs Offences
It depends on the offence. Smuggling and unlawful importation under section 233 are strict liability, so intent is not required, although an honest and reasonable mistake of fact is a defence. Tier 1, tier 2, and tobacco offences require proof of intention or recklessness.
Yes. Performance-enhancing steroids, such as testosterone and nandrolone, are tier 1 goods. Intentionally importing them without approval carries a maximum penalty of 5 years imprisonment and/or 1,000 penalty units under section 233BAA.
It can be. Section 233BABAD makes it an offence to possess or convey tobacco products while reckless as to whether they were imported to defraud the revenue. The maximum penalty is 5 years imprisonment and/or 3 times the duty involved.
It is best practice to attain legal advice before the payment deadline. Paying the notice is not an admission of guilt. You can also refuse to pay and defend the matter in court if you are prosecuted.
Penalties depend on the offence and the goods. They range from an infringement notice capped at 15 penalty units for individuals up to 10 years imprisonment for tier 2 goods and intentional tobacco offences.
Speak to a criminal defence lawyer today on (02) 8084 9929 or book a free consultation online.
