PROCEEDS OF CRIME
What is Proceeds of Crime?
Dealing with property
suspected of being proceeds of crime can be found under Section 193(C) Crimes Act 1900(NSW). Given the
serious and complex nature of this offence and the fact with a charge of this
offence oftentimes the authorities will utilise the Confiscation of Proceeds of Crime Act 1989 (NSW) to confiscate the
property that is being dealt with we highly recommend you seek a robust senior
solicitor to represent you.
One examples of
dealing with the proceeds of crime is transferring money that had been obtained
fraudulently from a bank account.
Law/Jurisdiction
An offence of dealing with the proceeds of crime it is to be dealt with
in the Local Court unless an election is made for trial on indictment by the
Department of Public Prosecutions (DPP).
The nature and elements of the offence of Dealing with the proceeds of
Crime were considered in the NSW Court of Criminal Appeal case of Zahrooni v R [2010] NSWCCA 252 at [60]:
Here it was said that the “primary
purpose of the Act is to make crime unrewarding and unproductive”.
the law
This offence of Dealing
with property suspected of being proceeds of crimeis set out in sections 193B and
193C of the Crimes Act 1900 (NSW).
Under section 193B, a person who knowingly deals with the proceeds of
crime is guilty of a criminal offence. Furthermore, a person who knowingly
deals with the proceeds of crime and intends to conceal the fact that it is
proceeds of crime is guilty of a more serious criminal offence. You are also
guilty of a criminal offence if you are reckless in dealing with the proceeds
of crime.
Under section 193C, a person is guilty of this offence if the person
deals with property and there are reasonable grounds to suspect that the
property being dealt with is proceeds of crime. At the time of dealing with
such property, it must be worth at least $100,000.
This section also outlines a lesser offence, which involves a person
dealing with property, where there are reasonable grounds that the property in
question is proceeds of crime and is worth less than $100,000 at the time that
the property is dealt with.
What must the prosecution
prove?
Since dealing
with the proceeds of crime is a criminal
offence, the burden of proof lies on the Prosecution. The prosecution must
prove the Accused’s guilt beyond reasonable doubt. That is a high standard of
proof that the prosecution must achieve before someone can be convicted of dealing with the proceeds of
crime.
To establish dealing
with the proceeds of crime, the prosecution
must prove each of the following matters beyond reasonable doubt:
·
You deal/dealt with
property; and
·
There are reasonable
grounds to suspect the property is proceeds of crime.
Or
·
You deal with
proceeds of crime;
·
Being reckless as to
whether it is proceeds of crime.
Or
·
You deal with
proceeds of crime;
·
Knowing that it is
proceeds of crime
Or
·
You deal with
proceeds of crime;
·
Knowing that it is
proceeds of crime; and
·
Intending to conceal
that it is proceeds of crime.
Deal with includes receive, possess, conceal or dispose of; or bring or
cause to be brought into NSW, including transfer or cause to be transferred by
electronic communication, or engage directly or indirectly in a transaction,
including receiving or making a gift.
Proceeds of crime means any property that is substantially derived or
realised, directly or indirectly, by any person from the commission of a
serious offence.
Serious offence means any offence against the laws of New South Wales,
being an offence that may be prosecuted on indictment; or the offence of
supplying any restricted substance prescribed for the purposes of section 16 of
the Poisons and Therapeutic Goods Act
1966(NSW) that arises under section 18A of that Act; or an offence committed
outside New South Wales (including outside Australia) that would be an offence
referred to in paragraph (a) or (b) if it had been committed in New South
Wales.
If you are
charged with the offence of dealing with the proceeds of crime what are your
options?
National Criminal
Lawyers have been successful in defending a number of dealing with the proceeds
of crime charges where the prosecution could not establish each of the elements
of dealing with the proceeds of crime. We have also achieved a number of
non-convictions for dealing with the proceeds of crime charges.
NCL offer the
following options for those who have been charged with dealing with the
proceeds of crime:
1. We will negotiate with prosecutors
(police or DPP) (a term referred to as “plea negotiations”) to request that the
charge is withdrawn, downgraded or fact sheets amended;
2. NCL will Plead Not Guilty and go to
hearing/trial and persuade the Court that prosecution has not proven its case
beyond reasonable doubt;
3. Plead
guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view
of having you sentenced less harshly; and/or
4. Plead guilty with full acceptance of
the facts as set out by the police and make strong submissions on your behalf
requesting that the Court not record a criminal conviction.
Pleading guilty
If you agree that you have committed the offence and the police are able
to prove all the elements of the offence, it is best to plead guilty at an
early opportunity to receive the maximum discount. Currently the maximum
discount available for an early plea of guilty is 25% of the sentence.
Furthermore, the early guilty plea shows the Court that you have remorse
and contrition for your actions.
Our Lawyers at National Criminal Lawyers work closely with you to ensure
that we obtain all necessary paper work at increasing the chances of obtaining
a non-conviction or section 10.
Maximum penalty:
Where there are reasonable grounds to suspect the property is proceeds
of crime the maximum penalty if heard in the Local Courtis 2 years imprisonment
and/or a fine of $5,500.00.
Where you are reckless to the property being proceeds of crime the
maximum penalty in the District Court is 10 years imprisonment.
Where you know the property is proceeds of crimes the maximum penalty is
15 years imprisonment and when you know intending to conceal that fact, the
maximum penalty is 20 years imprisonment.
The above penalties are typically reserved for the worst offenders.
Pleading Not Guilty
If you decide to plead not guilty you will need to
prepare to go to a Defended Hearing. A defended hearing
is where all the witnesses of that case are called to give evidence. The
witnesses are both examined by the prosecution and tested by your defence
lawyers.
National Criminal Lawyers have defended thousands of
people charged with dealing
with the proceeds of crime and are experts at these hearings.
Defences
Sometimes there may exist a defence at law. Some of the possible
defences available for those charged with dealing with the proceeds of crime can include:
· Duress-If you were
compelled to act in a certain way due to the circumstances, or the threats of
another you may be able to argue “Duress”
· Necessity – If your
actions were necessary to prevent a greater harm from occurring, you may have
the defence of-Necessity.
· Self-defence - If you
were defending yourself or another OR yours or another’s property you may have
a Defence of Self-Defence;
Statistics
The Courts are not bound by statistics however there must be reasonable
consistency in sentences. A Magistrate or Judge should have regard to what has
been done in other cases. In Green
[2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ
stated:
“Equal Justice” embodies the norm expressed in the
terms “equality before the law”. It is an aspect of the rule of law.
For matters which were equal or less than $100,000, 27% of offenders received
a sentence of full time imprisonment whereas 40% received a s9 Good behaviour
Bond.
For matters which were over $100,000, 100% of persons who plead or were
found Guilty received some form of a custodial sentence. In particular 50% of
persons were sentenced to fulltime imprisonment, 25% were sentenced to an
Intensive corrections order and 25% sentenced to a suspended Sentence.
POSSIBLE PENALTY’S
In NSW, a court can impose any of the following penalties for a dealing with the proceeds of
crime charge.
·
Prison sentence;
·
Home Detention;
·
Intensive correction
order (previously periodic detention);
·
Suspended sentence;
·
Community service
order (CSO);
·
Good behaviour bond;
·
Fine;
·
Section 10.
However, from the 24 September 2018 new penalty’s will be replacing the
above. They are as follows:
·
Full time
Imprisonment;
·
New ICO (ICO) with a
home detention condition available;
·
New Community
Correction Order (CCO);
·
Fine;
·
New Conditional
release Order (CRO).
Case studies
Our Client was charged with dealing with proceeds of crime after the
dishonestly was caught transferring
money that had been obtained fraudulently from a bank account. He pleaded guilty to the charge. The defence applied to have the
sentence dealt with by way of a good behaviour bond. Our submissions were
successful, and our client received a 12-month bond.
Why National Criminal
Lawyers
There are three reasons to choose National Criminal Lawyers
We are the experts in either beating or having criminal charges
withdrawn AND/OR obtaining the least restrictive penalty available. This is
because no matter which option you choose within our tailored Options at Law
you will be dealing with experienced criminal lawyers who can make sure the
evidence is not only obtained properly but also that your case is prepared and
presented to the highest best practice standards possible. This is also done
without breaking your pocket.
2. We give a Senior
Defence Lawyer guarantee
No matter which option at law you choose, National Criminal Lawyers can
guarantee that a Senior Defence Lawyer will represent you. This means that with
our over 25 years of Combined criminal law experience you will get the best
result possible.
3. National Criminal
Lawyers are the best defenders of your rights
At National Criminal Lawyers we know that Criminal Law is a matter of
Human Rights. For this reason, we take pride and passion in representing our
clients. This pride and passion to assist those charged with an alleged or
actual breach of the criminal law is to us a matter of righteous necessity and
in that sense, you can always rest assured that National Criminal Lawyers are
the best defenders of your rights. This true not only when the police have just
simply got it wrong OR if they have got it right then we can speak with you and
make sure you get you the best result available.
If you have been charged with any Dealing with property
suspected of being proceeds ofcrime offence our Team
at National Criminal Lawyers are well versed and specialists in having charges
either withdrawn and otherwise achieving favourable outcomes. Please contact
our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.
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