Proceeds of Crime

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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.

Case law/Jurisdiction

An offence of dealing with the proceeds of crime is what is known as a “Table 1” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with 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 crime is 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 Penalties

Where there are reasonable grounds to suspect the property is proceeds of crime the maximum penalty if heard in the Local Court is 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.

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 dealing with the proceeds of crime and are experts at these hearings.

Defences

Some of the possible defences available for those charged with dealing with the proceeds of crime can include:

  • 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”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
  • 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% offenders received some form of a custodial sentence. In particular 50% of offenders 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:

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 Dealing with property suspected of being proceeds of crime 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.

Book your first free appointment with National Criminal lawyers now.
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