CRIMINAL SYNDICATE AND ORGANISED CRIME
In other Australian jurisdictions, such as New South Wales, statutory changes have resulted in the creation of unique criminal syndicate and organised crime offences. Such charges often accompany drug related and fraud related prosecutions and, target alleged criminal activity pursued by an organisation for financial gain. Further, Courts can impose non-association orders on individuals if they are suspected to be a member of a criminal syndicate, which orders can also extend to orders that they not performs certain acts, sometimes as benign as getting into a certain vehicle or changing their phone number.
The introduction of specific organised crime offences has meant that evidence, which would not usually be admissible against a lone accused, can be admissible against all if they are alleged to be participants in a criminal organisation and are charged with a criminal syndicate offence. Organised crime and criminal syndicate prosecutions often come about after months or years of investigation, producing vast quantities of telephone intercept and surveillance materials. Most recently, in New South Wales, the Australian Federal Police commenced Operation Veyda, which has since charged 18 individuals with importation offences, alleged to have been committed by two international drug syndicates. This investigation spanned some 18 months and involved an undercover operative, telephone intercepts, and surveillance device material. Our office represents an individual charged under this Operation, which may be one of the biggest criminal prosecutions in Australian legal history.
There are a number of Commonwealth Offences under the Criminal Code 1995 and the Anti-money laundering and Counter-terrorism Financing Act 2006 which fall within the ambit of organised crime and which can be investigated by the Australian Federal Police. These offences are summarised also in this section.
In Victoria, unlike in other jurisdictions, we have not enacted specific offences in relation to Organised Crime. If a person commits offences, such as extortion, money laundering, conspiracy, drug trafficking, murder, fraud, make threats to kill and so forth, they are charged regardless of their motives, background or connection with a criminal enterprise. However, if it is alleged that the person committed these offences in the context of profit driven organised crime, the way in which these offences are sentenced differs considerably. Furthermore, if they are charged with conspiracy offences, the evidence elicited in relation to some co-accused may be used against all.
Quite apart from the aggravating effect that the person’s profit driven offending may have on their sentence, that person may also be deemed under the Act a serious offender. A person may be sentenced as a serious offender for serious drug offences, violence offences, arson offences, or sex offences. Where a person is sentenced as a serious offender, the legislation states that the Court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. Accordingly, the sentencing Judge may in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
A sentence of imprisonment for each respective offence will also, unless the Court otherwise orders, be served cumulatively. Accordingly, the period of imprisonment will be longer.
Continuing Criminal Enterprise (CCE) Offences
A person may also be sentenced under the CCE provisions, if they are on trial for a continuing criminal enterprise offence and have been convicted of relevant offences or continuing criminal enterprise offences in one or more other trials or hearings. Relevant offences are indictable offences committed by public sector employees. If you are not a public sector employee, you may still be caught with these provisions provided that you have committed numerous continuing criminal enterprise offences, which are defined under Schedule 1A of the Sentencing Act as:
- An offence against any of the following provisions of the Crimes Act 1958 :
- (a) section 74(1) (theft) where the value of the property stolen is $50 000 or more;
- (b) section 75(1) (robbery) where the value of the property stolen is $50 000 or more;
- (c) section 75A(1) (armed robbery) where the value of the property stolen is $50 000 or more;
- (d) section 81(1) (obtaining property by deception) where the value of the property obtained is $50 000 or more;
- (e) section 82(1) (obtaining financial advantage by deception) where the value of the financial advantage obtained is $50 000 or more;
- (f) section 83(1) (false accounting) where the potential gain or loss is $50 000 or more;
- (g) section 88(2) (handling stolen goods) where the value of the goods handled is $50 000 or more;
- (h) section 197(1), (2) or (3) (destroying or damaging property) where the value of the property destroyed or damaged is $50 000 or more.
- Any Schedule 2 offence within the meaning of the Confiscation Act 1997 where the value of the property in respect of which the offence is committed is $50 000 or more.
- The common law offence of conspiracy to defraud where the property, financial advantage or economic loss in respect of which the offence is committed is $50 000 or more.
- An offence against section 111A, 111B or 111C of the Fisheries Act 1995 where the quantity of fish in respect of which the offence is committed is not less than 5 times the commercial quantity (within the meaning of that Act).
To successfully challenge the allegations made by the Prosecution and to secure the best possible outcome for our clients, Galbally Rolfe has developed electronic data management systems for maximum access to and cross referencing of the huge amounts of information generated by complex criminal trials.
Our lawyers are exceptionally skilled in large and complex criminal matters, providing distinctive and professional representation to those persons accused of participating in or facilitating organised crime activities. If you are charged with multiple offences and are concerned that you may be treated as a serious offender or a continuing criminal enterprise offender, please contact us to discuss your legal predicament.
Criminal activity which traverses national borders usually falls within the ambit of the Commonwealth Law and is investigated by the Australian Federal Police (AFP). In particular, drug importation offences, human trafficking offences, offences involving carriage services and money laundering offences are all investigated by the AFP and governed by Federal Legislation. They are however heard in State Courts.
More often than not, the AFP engage in controlled operations, where they introduce an undercover AFP officer into a criminal syndicate or to individuals suspected to have engaged in federal offences. These controlled operations are facilitated by a controlled operation authority and are strictly regulated. For individuals charged following a controlled operation, a thorough examination of the authority and its basis is integral in order to understand what the authorities were permitted to do and whether they were entitled to engage in criminal conduct, as part of the operation, during the duration of the authority.
At Galbally Rolfe, we have acted in a number of complex federal matters involving controlled operations and understand the law surrounding these, which interacts with common law principles of illegally and improperly obtained evidence (previously considered to be entrapment). We encourage any person charged pursuant to a controlled operation to contact our office to discuss their options.