Under s 307.2 of the Criminal Code Act 1995 (Cth), where recklessness is the prescribed fault element for importing a marketable quantity of a border controlled drug, the absence of specific knowledge or intention that the substance is a border controlled drug is not a mitigating factor; rather, the presence of intention or knowledge is properly characterised as an aggravating factor. The legislative scheme treats reckless and intentional offenders identically by prescribing the same maximum penalty. The obiter dictum of Wheeler JA in Tsen v R suggesting lower culpability for reckless importers was not followed.
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