Unveiling The Underworld

What is the offence?

At its core, participating in a criminal group involves knowingly engaging in or contributing to the affairs of a criminal organisation.

What must be proven?

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

• You knew, or ought reasonably to have known, that you participated in a criminal group, and
• You knew, or ought reasonable to have known, that your participation in that criminal group contributed to the occurrence of any criminal activity.

1. What is a criminal group?

A “criminal group” is characterised by the participation of three or more people who have as one of their objectives to:

• Obtain material benefits from conduct that constitutes a serious indictable offence, or
• Obtain material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or
• Committing a serious violence offence, or
• Engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence.

Section 93S(1) Crimes Act 1900 (NSW).

Importantly, a person need not be a member of an official criminal syndicate, or group, to participate in the activities of the criminal group.

2. What is a “serious indictable” offence

A serious indicatable offence means an “indictable offence that is punishable by imprisonment for life or for a term of 5 years of more”: s 4 Crimes Act.

3. What is a “serious violence” offence?

A serious violence offence is defined in s 93S of the Crimes Act as an offence punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves:

• A loss of a person’s life or serious risk of loss of a person’s life, or
• Serious injury to a person or serious risk of serious injury to a person, or
• Serious damage to property in circumstances endangering the safety of any person, or
• Perverting the course of justice in relation to any conduct, if proved, would constitute a serious violence offence.

4. Participation in a criminal group

Your participation in a criminal group must have resulted in a contribution to the occurrence of a criminal activity.

This can encompass a wide range of actions, from coordinating the importation of illicit drugs to facilitating money laundering schemes.

What are the maximum penalties?

The maximum penalties for an offence of this nature varies upon the level of involvement of the charged offender.

An outline of those maximum penalties is set out in the table below:

Level of involvement	Maximum penalty
Being a participant in the criminal group – not directing any activities of the group.	Imprisonment of 5 years: s 93T(1).
Directing any of the activities of the group	Imprisonment of 10 years: s 93T(1A).
Assaulting another person, intending by that action to participate in any criminal activity of a criminal group	Imprisonment of 10 years: s 93T(2).
Destroying or damaging property belonging to another person, or threatening to destroy or damage property belonging to another person, intending by that action to participate in the criminal activity of a criminal group	Imprisonment of 10 years: s 93T(3).
Assaulting a law enforcement officer while in the execution of their duty, intending by that action to participate in any criminal activity of a criminal group	Imprisonment of 14 years: s 93T(3)
Participating in a criminal group whose activities are organised and on-going by directing any of the activities of the group	Imprisonment for 15 years: s 93T(4A).

There are different types of penalties which are available to a judicial officer. These are listed below, from least serious to most serious:

• A section 10 dismissal,
• A conditional release order without conviction,
• A conditional release order with conviction,
• A fine,
• A community corrections order,
• An intensive corrections order, and
• Full-time imprisonment.

What are the possible defences?

The following defences may be pursued:

• Necessity,
• Duress.

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Money is the lifeblood that sustains criminal enterprises in the underworld of crime.

The proceeds of illegal activities flow through a labyrinthine network of transactions, often leaving a trail of devastation in their wake.

The offence of dealing with the property proceeds of crime strikes at the heart of this financial web.

It encompasses a broad range of activities aimed at concealing or legitimising the proceeds derived from the course of criminal conduct.

What is the offence?

Pursuant to s 193C of the Crimes Act 1900 (NSW), it is an offence to deal with any property where there is a reasonable ground to suspect that the property was substantially derived from the course of criminal conduct.

What must be proven?

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

• You directly or indirectly dealt with any property, and
• Held a reasonable suspicion and/or belief that the property has been substantially derived from the commission of a serious offence.

1. What are proceeds of crime?

The term “proceeds of crime” is defined in s 193A of the Crimes Act, as follows:

“Any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence”.

2. “Dealing with” any property

The term “dealt with” is defined in s 193A of the Crimes Act, as follows:

“deal with includes to –

• Receive, possess, conceal, or dispose of, or
• Bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or
• Send or cause to be sent out of New South Wales, including transfer or cause to be transferred by electronic communication, or
• Engage directly or indirectly in a transaction, including receiving or making a gift”.

3. Holding a “reasonable suspicion”

It must be demonstrated that an alleged offender had reasonable grounds for suspecting that the property was the proceeds of crime.

Section 193CA(1) of the Crimes Act addresses the circumstances whereby there are reasonable grounds for suspecting that property is proceeds of crime, as follows:

• Transactions structured or arranged to avoid financial reporting requirements,
• The use of one or more bank accounts in false names,
• Dealing with significant cash transactions while contravening any reporting obligations or by providing false and misleading information,
• Physical possession of more than $100,000 without lawful excuse,
• The value of the property is grossly disproportionate to the person’s income or expenditure,
• The use of a token or other unique identifier that preserves the anonymity of one or more of the parties to the dealing,
• The use or possession of a falsely subscribed telecommunications service, or a dedicated encrypted communication device,
• The defendant possessed or accessed instructions that are consistent with money laundering,
• The dealing involved a clandestine meeting or the use of a concealed compartment, and
• A dealing was done on behalf of a person and no information is given which allows this person to be identified and/or found.

What are the maximum penalties?

The maximum penalty for an offence of this nature varies upon the quantum of property seized by law enforcement agencies.

An outline of those maximum penalties is set out in the table below:

Value of property	Maximum penalty
Property value of $5,000,000 or more.	If the offence is committed in circumstances of aggravation: Imprisonment for 8 years: s 193C(1AA). Otherwise: Imprisonment of 10 years: s 193C(1AB).
Property value of $100,000 or more, but less than $5,000,000.	Imprisonment for 5 years: s 193C(1).
Property value of less than $100,000	Imprisonment for 3 years.

There are different types of penalties which are available to a judicial officer. These are listed below, from least serious to most serious:

• A section 10 dismissal,
• A conditional release order without conviction,
• A conditional release order with conviction,
• A fine,
• A community corrections order,
• An intensive corrections order, and
• Full-time imprisonment.

1. What are “circumstances of aggravation”?

Circumstances of aggravation are factors that, when present in a crime, can increase the objective seriousness of the offence or the punishment imposed on the offender.

Section 193C(5) of the Crimes Act outlines circumstances of aggravation as follows:

• The person used a position of professional trust or fiduciary duty to commit the offence, or
• The offence was committed in the context of a criminal group, serious crime organisation, or serious criminal activity, or
• The offence was committed to fund or support terrorism, or
• The person provided finance to enable part or all of the dealings in property, or
• The offence was committed for the purposes of transferring the value of the property out of New South Wales.

2. What Court will hear my matter?

If the value of the property is below $100,000, the matter is considered to be a Table 2 offence.

This means that the Office of the Department of Public Prosecutions may elect to have the matter dealt with on indictment in the District Court of New South Wales. If no election is made, the matter will be dealt with in the Local Court.

If the value of the property exceeds $100,000, the matter is considered to be a Table 1 offence.

This means that the Office of the Department of Public Prosecutions, or an accused, may elect to have the matter dealt with on indictment in the District Court of New South Wales. If no election is made, the matter will be dealt with in the Local Court.

What are the possible defences?

The statutory defences available for this offence are found in s 193C(4) of the Crimes Act, as follows:

It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a state or territory or another country.

Other defences which may be available to you include:

• Duress, and
• Necessity

What happens to the property seized?

The Proceeds of Crime Act 2002 (NSW) empowers authorities to seize and confiscate assets derived from criminal conduct.

This Act establishes a scheme which effectively permits any confiscated proceeds of crime to be used to benefit the community.