What is a ‘proceeds of crime offence’?
Proceeds of crime are offences dealt with by sections 193B and 193(C) of the Crimes Act 1900. It is where a person receives financial gain (money or assets) through serious criminal activity.
The Criminal Assets Recovery Act 1990 provides for the confiscation of proceeds of crimes as a debt due to the Crown. This power can be used even if a criminal conviction has not been found. Further, a person may be summoned to appear before NSW Crime Commission to give evidence about proceeds of crime.
A section 193B (money laundering) offence has three categories of offending:
- knowingly deal and conceal proceeds of crime;
- knowingly deal with proceeds of crime; and
- recklessly deal with proceeds of crime.
*Reckless = Behaviour that is a departure from the care a reasonable person would exercise in similar circumstances.
A section 193C (proceeds of crime) offence has two categories of offending:
- There are *reasonable grounds to suspect that the property dealt with is proceeds of crime, valued at more than $100,000.
- There are *reasonable grounds to suspect that the property dealt with is proceeds of crime, valued at less than $100,000.
* Reasonable grounds has been defined as a suspicion that: property in person’s possession is disproportionate to their income; banks accounts held in false names; misleading, missing or false information has been given about a significant cash transaction; transactions structured to avoid financial reporting; and a claim that a dealing has been done on behalf of an unidentified person.
* Reasonable grounds to suspect’ means that police do not need to prove that an item is the proceeds of crime. Police only need to prove that a reasonable suspicion is held. If the court accepts this, then the onus falls on the defendant to prove that the property is not proceeds of crime.
The Crimes Act 1900 defines “deal with” (relevant to sections 193B and 193C)as:
- receive, possess, conceal or dispose of, or
- bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or
- engage directly or indirectly in a transaction, including receiving or making a gift.
What is the maximum penalty for these offences?
The maximum penalty for a section 193B (money laundering) offence is
- knowingly deal and conceal proceeds of crime – 20 years imprisonment.
- knowingly deal with proceeds of crime – 15years imprisonment.
- recklessly deal with proceeds of crime – 10 years imprisonment.
The maximum penalty for a section 193C (proceeds of crime) offence is
- 5 years imprisonment, where the value of the property is more than $100,000.
- 3 years imprisonment, where the value of the property is less than $100,000.
Please note that these penalties are reserved for the most serious cases only.
What are my options?
Plead guilty
This option is recommended only where you accept that:
Section 193B
- you Knowingly dealt with the proceeds of crime, or
- you knowingly dealt with and concealed proceeds of crime, or
- you recklessly dealt with the proceeds of crime.
Section 193C
- there are reasonable grounds to suspect that property dealt with is the proceeds of crime; and you are unable to prove, on the balance of probabilities, that the money dealt with is not proceeds of crime.
‘Dealt with” is defined as:
- received, possessed, concealed or disposed of, or
- brought or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or
- engaged directly or indirectly in a transaction, including receiving or making of a gift.
A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.
What possible outcomes exist?
- Conditional release order “CRO” (with or without conviction)
- This is usually subject to a period of good behaviour.
- If an offence is committed during the period of the order, a court may resentence you for the offence committed.
- Statistics show that less than 2% of offenders receive this outcome.
- Community Corrections Orders (“CCO”)
- An offender is placed under the supervision of Community Corrections.
- Example of a CCO is performing service within the community, or being required to undertake mental health treatment.
- Intensive Corrections Order (“ICO”)
- This is where a term of imprisonment can be served in the community.
- Full-time imprisonment
- Served in a correctional facility.
Plead not guilty
To prove this charge, the Prosecution must establish, beyond a reasonable doubt, that:
section 193B
- you Knowingly dealt with the proceeds of crime, or
- you knowingly dealt with and concealed proceeds of crime, or
- you recklessly dealt with the proceeds of crime. (NB: This is available as an alternative verdict if found not guilty of a ‘knowingly’ offence.)
Section 193C
- there are reasonable grounds to suspect that property dealt with is the proceeds of crime; and you are unable to prove, on the balance of probabilities, that the money dealt with is not the proceeds of crime.
‘Dealt with” is defined as:
- received, possessed, concealed or disposed of, or
- brought or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or
- engaged directly or indirectly in a transaction, including receiving or making of a gift.
Defences:
- Section 193B(4)
- It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory.
- Section 193C(4)
- It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country.
- You did not ‘deal with’ the proceeds of crime. The Act defines this as:
- received, possessed, concealed or disposed of, or
- brought or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or
- engaged directly or indirectly in a transaction, including receiving or making of a gift.
- Duress:
- Circumstances or the threats of another compelled you to act in the manner you had.
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