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Participation in a criminal group
What is Participation in a criminal group ?
In late 2006, New South Wales became the first state in Australia to introduce specific offences aimed at criminalising the participation in a criminal organisation.
Common examples of where a person’s prospects of successfully defending the charge are increased include where the prosecution is reliant on the testimony of one witness or circumstantial surveillance.
Case law/Jurisdiction
Depending on which section you are charged with Participating in a criminal group is what is known as either a Table 1 or Table 2 offence under the relevant legislation, which means 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) or in certain circumstances on election by the accused person.
ln New South Wales, criminal groups are defined as groups of three or more people who have as one of their objectives to obtain material benefits from serious indictable offences (s93IJ( I )(a) and (b)) Crimes Act 1900 (NSW) or to commit serious violence offences (s93IJ(l)(c) and (d)) Crimes Act 1900 (NSW) .
The Law
The offence of Participating in a criminal group is found at section 93T of the Crimes Act 1900 and is as follows.
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.
- 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.
- 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.
- 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.
What must the prosecution prove?
Since Participating in a criminal group 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 Participating in a criminal group.
To establish Participating in a criminal group, the prosecution must prove each of the following matters beyond reasonable doubt:
- You participate in a criminal group by directing any of the activities of the group; and
- You knew or ought to reasonably have known that you participated in a criminal group; and
- You knew, or ought reasonably to have known, that your participation in that group contributed to the occurrence of any criminal activity.
Or
- You participate in a criminal group by directing any of the activities of the group; and
- You know that it is a criminal group; and
- You know, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity.
Or
- You assault another person, or destroy or damage property, or threatens to destroy or damage property; and
- Intend by that action to participate in any criminal activity of a criminal group.
Or
- You participate in a criminal group whose activities are organised and on-going by directing any of the activities of the group; and
- You know that it is a criminal group; and
- You know or are reckless as to whether, that participation contributes to the occurrence of any criminal activity.
Criminal group means a group of 3 or more people who have as their objective:
- Obtaining material benefits from conduct that constitutes a serious indictable offence (offence carrying a maximum penalty of more than 5 years), or
- Obtaining 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 serious violence offences, 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.
If you are charged with the offence of Participating in a criminal group what are your options?
National Criminal Lawyers have been successful in defending a large number of Participating in a criminal group charges where the prosecution could not establish each of the elements of Participating in a criminal group. We have also achieved a number of non-convictions for Participating in a criminal group charge.
NCL offer the following options for those who have been charged with offensive language:
- 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;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- 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
- 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 Penalties
Participating in a criminal group can be punished with a prison sentence. The prison sentences range from 5 years to 15 years depending on the section used to charge. If heard in the Local Court the jurisdictional maximum prison sentence is 2 years. Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
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 numerous people charged with Participating in a criminal group 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 Participating in a criminal group 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 offenders who were convicted of section 93(1)(a) which is the least serious of the section 93 offences 34% of offenders received a full-time prison sentence whereas 11% received an intensive corrections order (ICO), 23% received a suspended sentence, 11% received a community service order (CSO), 19% received a good behaviour bond and 2% were fined.
Possible Penalty's
In NSW, a court can impose any of the following penalties for a Participating in a criminal group 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 originally charged with 7 offences the most serious being firearm possession and participate in a criminal group. There were 3 other co-accused in the matter. Our client was refused bail along with 2 of his co-accused from the time of arrest. After a 4-day committal hearing at the Local Court we raised significant doubt as to our client’s guilt such that the Crown accepted the serious weaknesses in their case. Negotiations took place between the parties and a plea was accepted in relation to possession of an unauthorised firearm. The other more serious offences were subsequently withdrawn and dismissed. Needless to say, our client thanks to our expert representation was able to achieve a great result.
Why National Criminal Lawyers?
There are three reasons to choose National Criminal Lawyers:
1. We get the results
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 Participate in an Criminal Group 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.
