Updated 1 Jan 2021
A Sydney Criminal Defence Lawyer writes about the new laws relating to Criminal Groups and Consorting.
Peter Proctor, the Principal Solicitor and Criminal lawyer of Proctor and Associates at Parramatta has analysed the new Organised Crime and Consorting Laws, including the new NSW Bikie Laws, that have been passed by the NSW State Government and which commenced on 9th April, 2012.
Call Proctor & Associates at their Parramatta law offices if you have been spoken to by Police and need legal advice, or have been charged with a Criminal Offence.Criminal Groups & Consorting
The intent of this new legislation is aimed at more stringent controls associated with “law and order” on the streets, particularly focusing on what are described as Outlaw Motor Cycle Gangs. The problem with the consorting laws is that innocent people can be caught in the web of the Government’s good intentions to clean up the streets.
The Crimes Amendment (Consorting and Organised Crime) Act 2012 deals with offences involving criminal groups and those involving consorting.
Offences relating to criminal groups
Crimes Act – Part 3A – Division 5 – Criminal Groups
- S. 93GA(1B) – A person must not fire a firearm at a dwelling-house or other building with reckless disregard for the safety of any person in the course of an organised criminal activity. Maximum penalty – 16 years imprisonment.
- S.93T(1) – A person must not participate in a criminal group.. A person participates in a criminal group if that person knows or ought reasonably to know that the group is a criminal group, and knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity. Maximum penalty – 5 years imprisonment.
- S. 93T(1A) – A person must not participate in a criminal group by directing any of the group’s activities. The person must know the group is a criminal group, and know or be reckless as to whether his/her participation contributes to the occurrence of any criminal activity. Maximum penalty – 10 years imprisonment.
- S. 93T(4A) – A person must not participate in a criminal group whose activities are organised and on-going by directing any of the group’s activities if that person knows the group is a criminal group, and knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty – 15 years imprisonment.
- S. 93TA(1) – A person must not receive from a criminal group a material benefit derived from the group’s criminal activities. The person must know the group is a criminal group, and know, or be reckless as to whether, the material benefit is derived from the group’s criminal activities. Maximum penalty – 5 years imprisonment.
- S. 93TA(2) “Derived” means “derived or realised, or substantially derived or realised, directly or indirectly” from the criminal activities of a group.
Consorting
The former offence of consorting in s.546A of the Crimes Act has been repealed and a new offence has been inserted in Part 3A – Division 7.
The new offence of consorting – S. 93X(1) carries a maximum penalty of 3 years imprisonment is as follows:
(1) A person who:
(a) habitually consorts with convicted offenders, and
(b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence.
Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both.
(2) A person does not “habitually consort” with convicted offenders unless:
(a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and
(b) the person consorts with each convicted offender on at least 2 occasions.
(3) An “official warning” is a warning given by a police officer (orally or in writing) that:
(a) a convicted offender is a convicted offender, and
(b) consorting with a convicted offender is an offence.
The term “convicted offender” means a person who has been convicted of an indictable offence (disregarding any offence under section 93X)
So, if on two occasions, (with no time limit between those occasions) a person consorts with 2 or more convicted offenders (together or separately) and has been given two official warnings by a police officer, then the person is liable upon conviction to be sentenced to 3 years in prison.
This is rather Alarming!!! – “Police State” legislation. Think about it:
First, police can by-pass privacy laws and divulge to another, that a person is a convicted offender. There is no time limit of being a “convicted offender”. The convicted offender might have committed something as minor as “shoplifting” 10 or 20 years ago.
Secondly, a person can be found guilty, not necessarily by having personal contact with the prior offender, but the consorting can be carried out by electronic communication such as telephone or email, to name two. The definition of “consort” – means consort in person or by any other means, including by electronic or other form of communication.
It’s not a case of innocent people talking to “criminals” – it’s worse than that – it’s innocent people talking or electronically communicating with someone who has a criminal conviction for an indictable offence, whether recently or ere so long ago. There is no time constraint.
Now, you might ask, “how would the police know about communication through electronic means?”
This is a more worrying question.
Previously, the offence of Consorting was a summary offence and one which carried a maximum penalty of only 6 months imprisonment. That being the case, warrants by the Authorities could not be taken out to enable surveillance of suspects for such offence.
However, an offence under 93X is now an indictable offence (Table 2) with a maximum penalty of 3 years imprisonment. Law enforcement officers are now able to carry out lawful surveillance on suspects for suspected consorting.
Under the Surveillance Devices Act, in order that a warrant be issued for the recording of illegal activities, one of the basis for the issue of such warrant is that a law enforcement officer must suspect on reasonable grounds that a relevant offence “has been, is being, is about to be or is likely to be committed. A “relevant offence” is one that may be prosecuted on indictment. That means that it must be an indictable offence and not a summary offence.
We can see therefore, that the intent of this legislation is far wider than it seems on the face of it.
Consorting Law Defences
There is a Defence available under S.93Y which provides as follows:
The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances:
(a) consorting with family members,
(b) consorting that occurs in the course of lawful employment or the lawful operation of a business,
(c) consorting that occurs in the course of training or education,
(d) consorting that occurs in the course of the provision of a health service,
(e) consorting that occurs in the course of the provision of legal advice,
(f) consorting that occurs in lawful custody or in the course of complying with a court order.
This defence provision, despite being a defence, still envisages that a person of the above class, can still be charged, but, if they satisfy the Court that it “was reasonable in the circumstances”, then the offence can be “disregarded”. This is either poorly worded legislation, or intended by the Government to catch family members, employment associates, educational personnel and legal advisors anyway, and let them put up a defence. What a good way for Law enforcement officers to obtain a warrant and “listen in”, for example, to the Lawyer talking to his client.
This legislation attacks our freedoms of association and if not used discreetly by Police, could lead to a serious deprivation of civil rights not to mention the development of a police state. Of more important concern though, is the ability of police authorities to abuse their powers under the surveillance legislation with the suspicion of “consorting” being the trigger for a Judge or Magistrate to issue a warrant for a surveillance device.