Commonwealth Offences
Commonwealth offences cover a wide spectrum of alleged criminal behaviours, from minor tax and customs infractions to severe crimes under the Criminal Code Act 1995 (Cth). These charges are typically prosecuted by the Commonwealth Director of Public Prosecutions (‘CDPP’) or the Australian Federal Police (‘AFP’).
Our team at Jackson John Defence Lawyers is comprised of highly skilled legal professionals who possess the experience and knowledge required to provide exceptional representation in a wide range of Commonwealth legal issues.
Possessing Quantities of Unlawfully Imported Border Controlled Drugs
Possessing quantities of unlawfully imported border-Possessing significant quantities of illegally imported border-controlled drugs is a grave offense with the potential to greatly impact your life and reputation. If you are facing charges related to this offense, it is crucial to promptly seek legal counsel.controlled drugs is a serious offence that can have a significant impact on your life and reputation. If you have been charged with this offence, it is important to seek legal advice immediately.
What You Need to Know
The Law
Section 307.6 of the Criminal Code Act 1995 (Cth) states:
- A person commits an offence if:
- the person possesses a substance; and
- the substance was unlawfully imported; and
- the substance is a border controlled drug or border controlled plant; and
- the quantity possessed is a marketable quantity.
Examples of marketable quantities of unlawfully imported border controlled drugs are:- Amphetamine: 2 grams
- Cannabis: 25 kilograms
- Cocaine: 2 grams
- GBL: 2 grams
- Heroin: 2 grams
- LSD: 0.002 grams
- Methamphetamine: 2 grams
- 3,4-Methylenedioxymethamphetamine (MDMA): 0.5 grams
- A person commits an offence if:
What Must the Prosecution Prove?
To be successful, the Prosecution must establish each of the following elements beyond a reasonable doubt:
- The accused possessed a substance; and
- The substance was unlawfully imported; and
- The substance is a border controlled drug or border controlled plant; and
- The quantity possessed is a commercial quantity.
What are the Types of Penalties?
The maximum penalty for Possessing Marketable Quantities of Unlawfully Imported Border-Controlled Drugs or Plants is 25 years imprisonment and/or a fine of $550,000.
This offence includes a broad spectrum of offending conduct. As such, the type of penalties varies greatly. The Court may consider sentencing you to one or more of the following:
Non-Conviction Order – Section 19B
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
- Good behaviour bond: this means you must be of good behaviour for a specific period, not exceeding three years.
- Supervision condition: this means you will be subject to a period of supervision by a probation officer, not exceeding two years. You must comply with that person’s reasonable requests.
- Restitution or compensation order: This means you must pay back any loss the victim has incurred as a result of the offending.
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
Fine
The maximum fine is 5000 penalty units for this offence. Many Commonwealth offences such as those in the Criminal Code Act 1995 (Cth) and Customs Act 1901 (Cth) are punishable by penalty units. Each penalty unit represents an amount of money, and the value of a Commonwealth penalty is indexed under a formula contained in section 4AA of the Crimes Act 1914 (Cth).
DATE OF OFFENCE VS. VALUE OF ONE PENALTY UNIT:
- On or after 1 July 2023: $313
- Between 1 January 2023 and 30 June 2023: $275
- Between 1 July 2020 and 31 December 2022: $222
- Between 1 July 2017 and 30 June 2020: $210
- Between 31 July 2015 and 30 June 2017: $180
- Between 28 December 2012 and 30 July 2015: $170
- Before 27 December 2012: $110
Conditional Release Order (CRO)
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Recognisance Release Order (RRO)
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
- That you be released immediately upon depositing a sum of money with the Court as a promise to comply with certain conditions; or
- That you be released after serving a portion of the total sentence. You can then be released upon entering into recognisance which requires you to deposit a sum or money to the Court as a promise to comply with certain conditions for the remainder of the sentence.
There is no maximum term for an RRO and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
Community Correction Order (CCO)
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
RPO – Section 21B
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
Intensive Correction Order (ICO)
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
- The offence you’re being sentenced for is an excluded offence such as murder, manslaughter, prescribed sexual offences, terrorism offences, and discharge of firearms offences.
- The sentence is more than two years. However, if being sentenced for more than one offence, the period increases to three years total.
Imprisonment
This offence carries a maximum imprisonment of 25 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
- Any risk to the community if you are released;
- Your compliance and behaviour whilst in custody;
- Whether you complied with any Court order whilst in custody;
- The impact of your release on the victim or victim’s family;
- The nature of the offence you were imprisoned for;
- The sentencing Court’s remarks;
- Your criminal record;
- Any reports from Community Corrections or Corrective Services;
- The likelihood of you complying with any conditions imposed upon your release;
- If releasing you will assist in reintegration back into the community;
- Whether the parole period will be sufficient to assist in your rehabilitation; and/or
- Any special circumstances such as possibility of deportation etc.
Possible Defences
Not Meeting the Elements
A defence to the offence of possessing quantities of unlawfully imported border controlled drugs may be that the Prosecution cannot prove the requisite elements beyond a reasonable doubt. This may include:
- Lack of Possession: Contesting the assertion that the accused had any form of possession over the substance in question, refuting any physical or legal control over it.
- Non-Commercial Quantity: Arguing that the quantity of the substance held by the accused does not meet the threshold for classification as a commercial quantity.
- Non-Importation: Denying any involvement in the importation process of the substance, asserting that it was not brought into the country.
- Absence of Intent to Sell: Demonstrating that the accused neither harbored an intention nor held a belief that any part of the border controlled drug or border controlled plant, or their derivatives, would be sold to others.
Duress
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Necessity
For necessity to be established, the following must exist at the time of the commission of the offence:
- You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
- You honestly and reasonably believed that you were in a situation of immediate peril; and
- Your actions were reasonable and proportionate to the situation.
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Why Jackson John Defence Lawyers?
When confronting charges related to border controlled drugs or plants, our team at Jackson John Defence Lawyers can assist you mount an effective defence. We have a wealth of experience in handling Commonwealth offences, our legal team understand the formidable resources of the CDPP and the AFP. Our aim is to provide superior representation, ensuring your rights are protected and helping you navigate the complexities of such prosecutions. Trust Jackson John Defence Lawyers for effective legal support and a tailored defence strategy.
Understanding the Different Types of Penalties
The maximum penalty for the offence causing damage to government property is 10 years imprisonment.
This offence includes a wide spectrum of offending conduct.
As such, the type of penalties varies greatly.
The Court may consider sentencing you to one or more of the following:
Non-Conviction Order – Section 19B
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
- Good behaviour bond: this means you must be of good behaviour for a specific period, not exceeding three years.
- Supervision condition: this means you will be subject to a period of supervision by a probation officer, not exceeding two years. You must comply with that person’s reasonable requests.
- Restitution or compensation order: This means you must pay back any loss the victim has incurred as a result of the offending.
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
Conditional Release Order (CRO)
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Recognisance Release Order (RRO)
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
- That you be released immediately upon depositing a sum of money with the Court as a promise to comply with certain conditions; or
- That you be released after serving a portion of the total sentence. You can then be released upon entering into recognisance which requires you to deposit a sum or money to the Court as a promise to comply with certain conditions for the remainder of the sentence.
There is no maximum term for an RRO and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach an RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
Community Correction Order (CCO)
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Intensive Correction Order (ICO)
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
- The offence you’re being sentenced for is an excluded offence such as murder, manslaughter, prescribed sexual offences, terrorism offences, and discharge of firearms offences.
- The sentence is more than two years. However, if being sentenced for more than one offence, the period increases to three years total.
Reparation/Compensation Order – Section 21B (RPO), or
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
Full-time Imprisonment
This offence carries a maximum imprisonment of 10 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
- Any risk to the community if you are released;
- Your compliance and behaviour whilst in custody;
- Whether you complied with any Court order whilst in custody;
- The impact of your release on the victim or victim’s family;
- The nature of the offence you were imprisoned for;
- The sentencing Court’s remarks;
- Your criminal record
- Any reports from Community Corrections or Corrective Services;
- The likelihood of you complying with any conditions imposed upon your release;
- If releasing you will assist in reintegration back into the community;
- Whether the parole period will be sufficient to assist in your rehabilitation; and/or
- Any special circumstances such as possibility of deportation etc.
Potential Defences
In any criminal case, the Prosecution must establish every element of the offence beyond a reasonable doubt. If you find yourself facing charges related to property destruction or damage, your potential defences will largely depend on the unique circumstances of your case.
It's crucial to consult with the experienced criminal lawyers at Jackson John Defence Lawyers to explore the best legal strategies and defences available. We can provide the guidance and expertise to help you navigate your legal situation effectively.
Self-Defence
The law states that:
- A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
- A person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary:
- to defend himself or herself or another person, or
- to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
- to protect property from unlawful taking, destruction, damage or interference, or
- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Necessity
For necessity to be established, the following must exist at the time of the commission of the offence:
- You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
- You honestly and reasonably believed that you were in a situation of immediate peril; and
- Your actions were reasonable and proportionate to the situation.
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Claim of Right
Claim of right is a legal defence for offences involving the acquisition of property. In its broadest sense, it operates as a defence when someone appropriates property in a manner that would usually constitute an offence. However, it applies when, at that moment, the individual genuinely believed they had a legitimate proprietary or possessory (i.e., legal) right to the property, even if that belief turns out to be mistaken.
In the case of R v Fuge, the Court clarified what a defendant must raise in order to be successful in their claim of right defence:
- The claim of right must be one that involves a belief as to the right to the property or money in the hands of another.
- The claim must be genuinely, that is, honestly held — whether it was well founded in fact or law or not.
- While the belief does not have to be reasonable, a colourable pretence is insufficient (that is, you must actually believe you have a legal right to a property, not just a belief that you might have a right).
- The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
- The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms — the relevant issue being whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
- The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.
- The claim of right must extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.
- In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled, or procured those acts.
- It is for the Prosecution to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.
Why Jackson John Defence Lawyers?
When facing an offence related to property damage or any other criminal charges, it's crucial to have experienced legal representation by your side.
Jackson John Defence Lawyers offer a wealth of expertise and a track record of success in handling complex cases. Our commitment to protecting your rights and their deep understanding of the law make them the ideal choice for navigating the intricacies of your legal situation.
Choosing Jackson John Defence Lawyers means selecting a strong and dedicated advocate to help you achieve the best possible outcome.
Membership of a Terrorist Organisation
Membership of a terrorist organisation is a grave and highly complex offence that falls under the domain of national security and counter-terrorism laws. It involves individuals associating with or actively supporting groups known to engage in terrorism, both domestically and internationally. Legal authorities take this offence with the utmost seriousness, as it poses a direct threat to a nation's safety and security.
The Law
Under section 102.3 of the Criminal Code Act 1995 (Cth):
- A person commits an offence if:
- The person intentionally is a member of an organisation; and
- The organisation is a terrorist organisation; and
- The person knows the organisation is a terrorist organisation.
- A person commits an offence if:
What Must be Proven?
For the Prosecution to be successful, they must be able to prove each of the below elements beyond a reasonable doubt:
- You, intentionally, are considered a member of an organisation;
- The organisation you are a member of is a terrorist organisation; and
- You have knowledge and are aware that the organisation is a terrorist organisation.
What are the Types of Penalties?
The maximum penalty for the offence of membership of a terrorist organisation is 10 years imprisonment.
This offence includes a wide spectrum of offending conduct. As such, the type of penalties varies greatly.
The Court may consider sentencing you to one or more of the following:
Non-Conviction Order – Section 19B
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
- Good behaviour bond: this means you must be of good behaviour for a specific period, not exceeding three years.
- Supervision condition: this means you will be subject to a period of supervision by a probation officer, not exceeding two years. You must comply with that person’s reasonable requests.
- Restitution or compensation order: This means you must pay back any loss the victim has incurred as a result of the offending.
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
Conditional Release Order (CRO)
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Recognisance Release Order (RRO)
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
- That you be released immediately upon depositing a sum of money with the Court as a promise to comply with certain conditions; or
- That you be released after serving a portion of the total sentence. You can then be released upon entering into recognisance which requires you to deposit a sum or money to the Court as a promise to comply with certain conditions for the remainder of the sentence.
There is no maximum term for an RRO, and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach an RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
Community Correction Order (CCO)
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Intensive Correction Order (ICO)
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
- The offence you’re being sentenced for is an excluded offence such as murder, manslaughter, prescribed sexual offences, terrorism offences, and discharge of firearms offences.
- The sentence is more than two years. However, if being sentenced for more than one offence, the period increases to three years total.
Reparation/Compensation Order – Section 21B (RPO)
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
Full-time Imprisonment
This offence carries a maximum imprisonment of 25 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
- Any risk to the community if you are released;
- Your compliance and behaviour whilst in custody;
- Whether you complied with any Court order whilst in custody;
- The impact of your release on the victim or victim’s family;
- The nature of the offence you were imprisoned for;
- The sentencing Court’s remarks;
- Your criminal record;
- Any reports from Community Corrections or Corrective Services;
- The likelihood of you complying with any conditions imposed upon your release;
- If releasing you will assist in reintegration back into the community;
- Whether the parole period will be sufficient to assist in your rehabilitation; and/or
- Any special circumstances such as possibility of deportation etc.
Possible Defences
Defending against the charge of membership of a terrorist organisation involves carefully examining the circumstances surrounding the alleged association and presenting a strong legal case.
Not Meeting the Elements
A defence to the offence of having membership with a terrorist organisation may be that the Prosecution cannot prove the requisite elements beyond a reasonable doubt. This may include:
- Lack of Intentional Membership: If the accused can demonstrate that their association with the organization was unintentional or coerced, it can serve as a strong defence. For example, if they were forced, deceived, or manipulated into the association without their knowledge, it may not constitute membership in the legal sense.
- Not a Terrorist Organisation: Challenging the classification of the group as a terrorist organisation is another avenue of defence. This may involve providing evidence that the group primarily engages in lawful activities or that the accusations against the organization are unfounded. The defence can argue that the group does not meet the legal criteria for a terrorist organisation.
- Lack of Knowledge: If the accused genuinely did not know that the organisation, they associated with was involved in terrorist activities, it may be a valid defence. This can be particularly relevant if the accused joined the group for other, non-illegal reasons, such as for religious or social purposes.
- Identification Defence: Establishing that it was not the accused who was involved in the activities attributed to the organisation can be a powerful defence. This involves presenting evidence that someone else was responsible for the actions in question, and the accused was mistakenly identified.
- Reasonable Steps: It's important to note that if the accused took all reasonable steps to cease their membership as soon as they knew the organisation was a terrorist organisation, this can be a valid defence. The law recognises that individuals who promptly disassociate themselves from such groups when they become aware of their true nature should not be held criminally liable.
Self-Defence
The law states that:
- A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
- A person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary:
- to defend himself or herself or another person, or
- to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
- to protect property from unlawful taking, destruction, damage or interference, or
- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Necessity
For necessity to be established, the following must exist at the time of the commission of the offence:
- You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
- You honestly and reasonably believed that you were in a situation of immediate peril; and
- Your actions were reasonable and proportionate to the situation.
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Why Jackson John Defence Lawyers?
It's important to note that these defences require careful investigation and presentation of evidence. An experienced defence lawyer, like our team at Jackson John Defence Lawyers, can assess the specifics of the case, identify the most viable defence strategy, and work diligently to protect the rights and interests of the accused.
Cases involving allegations of membership in a terrorist organisation are highly complex, and legal representation is essential for navigating the intricacies of the law and ensuring a fair trial.
Smuggling, Importing and Exporting Prohibited Goods
Smuggling and importing/exporting prohibited goods is a serious criminal offence involving the unlawful movement of restricted items across national borders. This offence encompasses a range of illegal activities, from trafficking in illegal drugs to smuggling contraband items. It involves knowingly and deliberately breaching customs and border control laws, often resulting in severe legal consequences.
What You Need to Know
The Law
Under section 233 of the Customs Act 1901 (Cth):
- A person shall not:
- Smuggle any goods; or
- Import any prohibited import; or
- Export any prohibited exports; or
- Unlawfully convey or have in his or her possession any smuggled goods or prohibited imports or prohibited exports.
Understanding the Law
‘Prohibited goods’ are goods prohibited by any Commonwealth legislation, including:
- Certain animals and plants, and some types of animal and plant material;
- Firearms and other weapons without the appropriate permission;
- Ammunition;
- Pornography;
- Counterfeit goods; or
- Chemicals without a license.
- A person shall not:
What Must be Proven?
To be found guilty of smuggling or exporting/importing such prohibited goods, the Prosecution must prove beyond a reasonable doubt that you:
- Attempted to import or export, actually imported or exported or possessed imported goods; and
- That were prohibited by the law.
If you have doubts about the Prosecution's ability to prove these crucial factors beyond a reasonable doubt, you may consider contesting the charges by entering a not guilty plea in court. In this scenario, our team of highly skilled criminal lawyers will diligently craft a robust defence to challenge the Prosecution's case.
Types of Penalties
Typically, the punishment for engaging in the smuggling, importing, or exporting of prohibited goods involves fines. The fine's magnitude is largely dependent upon the value of the goods smuggled.
However, the specific penalty you receive will be contingent upon the unique circumstances of your case and can include the following:
Non-Conviction Order – Section 19B; or
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
- Good behaviour bond: this means you must be of good behaviour for a specific period, not exceeding three years.
- Supervision condition: this means you will be subject to a period of supervision by a probation officer, not exceeding two years. You must comply with that person’s reasonable requests.
- Restitution or compensation order: This means you must pay back any loss the victim has incurred as a result of the offending.
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
Fine
Should the court be able to ascertain the goods' value, you might be subject to a fine of up to three times the goods' value or up to 1,000 penalty units, whichever amount is greater. If the value is unknown, the maximum fine is 1,000 penalty units.
Many Commonwealth offences such as those in the Criminal Code Act 1995 (Cth) and Customs Act 1901 (Cth) are punishable by penalty units. Each penalty unit represents an amount of money, and the value of a Commonwealth penalty is indexed under a formula contained in section 4AA of the Crimes Act 1914 (Cth).
DATE OF OFFENCE VS. VALUE OF ONE PENALTY UNIT
- On or after 1 July 2023: $313
- Between 1 January 2023 and 30 June 2023: $275
- Between 1 July 2020 and 31 December 2022: $222
- Between 1 July 2017 and 30 June 2020: $210
- Between 31 July 2015 and 30 June 2017: $180
- Between 28 December 2012 and 30 July 2015: $170
- Before 27 December 2012: $110
Possible Defences for Smuggling, Importing & Exporting Prohibited Goods
Jackson John Defence Lawyers is a leading criminal defence law firm with extensive experience in defending clients charged with smuggling and importing and exporting prohibited goods.
We understand the serious consequences that a conviction can have, and we will work tirelessly to protect your rights and interests. We have a proven track record of success in defending clients charged with this offence, and we are committed to fighting for the best possible outcome in your case.
If you have been charged with smuggling and importing and exporting prohibited goods, do not hesitate to contact Jackson John Defence Lawyers today. We are here to help you.
Honest & Reasonable Mistake of Fact
The defence of an honest and reasonable mistake will be valid if the accused can prove that they genuinely believed in a scenario where their actions would be considered innocent had it been true. For example, if you believed that the goods were some other legal goods.
Duress
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Necessity
For necessity to be established, the following must exist at the time of the commission of the offence:
- You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
- You honestly and reasonably believed that you were in a situation of immediate peril; and
- Your actions were reasonable and proportionate to the situation.
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Why Jackson John Defence Lawyers?
Jackson John Defence Lawyers is a leading criminal defence law firm with extensive experience in defending clients charged with smuggling and importing and exporting prohibited goods.
We understand the serious consequences that a conviction can have, and we will work tirelessly to protect your rights and interests. We have a proven track record of success in defending clients charged with this offence, and we are committed to fighting for the best possible outcome in your case.
If you have been charged with smuggling and importing and exporting prohibited goods, do not hesitate to contact Jackson John Defence Lawyers today. We are here to help you.
Theft
Theft is a serious offence that can significantly impact one's life and reputation. If you have been charged with this offence, seeking legal advice as soon as possible is essential.
Jackson John Defence Lawyers is a leading criminal defence law firm with extensive experience defending clients alleged and charged with theft and stealing. We understand the severe consequences that a conviction can have, and we will work tirelessly to protect your rights and interests.
Understanding Theft Charges
The Law
Under section 131.1 of the Criminal Code Act 1995 (Cth), a person is guilty of an offence of theft if:
- The person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and the property belongs to a Commonwealth entity.
For the purposes of this section, a person’s appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. However, a person’s appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.
Some examples of this theft include:
- A person stealing artwork from the National Museum of Australia to appropriate the artwork themselves;
- A person stealing weather equipment from the Bureau of Meteorology for personal use; and/or
- A person stealing.
What Must the Prosecution Prove?
In order for the Prosecution to be successful, they must prove the following beyond reasonable doubt:
- The accused dishonestly appropriated property belonging to another with the intention of permanently depriving the other of the property; and
- The property belonged to the Commonwealth.
If the Prosecution cannot prove these elements beyond a reasonable doubt, the accused will not be convicted of a Commonwealth theft offence.
Different Penalties for Theft
The maximum penalty for a Commonwealth theft offence is 10 years imprisonment. However, it is important to bear in mind that this is the maximum penalty, and as such, the type of penalties vary greatly.
The Court may consider sentencing you to one or more of the following:
Non-Conviction Order – Section 19B
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
- Good behaviour bond: this means you must be of good behaviour for a specific period, not exceeding three years.
- Supervision condition: this means you will be subject to a period of supervision by a probation officer, not exceeding two years. You must comply with that person’s reasonable requests.
- Restitution or compensation order: This means you must pay back any loss the victim has incurred as a result of the offending.
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
Conditional Release Order (CRO)
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Recognisance Release Order (RRO)
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
- That you be released immediately upon depositing a sum of money with the Court as a promise to comply with certain conditions; or
- That you be released after serving a portion of the total sentence. You can then be released upon entering into recognisance which requires you to deposit a sum or money to the Court as a promise to comply with certain conditions for the remainder of the sentence.
There is no maximum term for an RRO and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
Community Correction Order (CCO)
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
Intensive Correction Order (ICO)
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
- The offence you’re being sentenced for is an excluded offence such as murder, manslaughter, prescribed sexual offences, terrorism offences, and discharge of firearms offences.
- The sentence is more than two years. However, if being sentenced for more than one offence, the period increases to three years total.
Reparation/Compensation Order – Section 21B (RPO)
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
Full-time Imprisonment
This offence carries a maximum imprisonment of 25 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
- Any risk to the community if you are released;
- Your compliance and behaviour whilst in custody;
- Whether you complied with any Court order whilst in custody;
- The impact of your release on the victim or victim’s family;
- The nature of the offence you were imprisoned for;
- The sentencing Court’s remarks;
- Your criminal record;
- Any reports from Community Corrections or Corrective Services;
- The likelihood of you complying with any conditions imposed upon your release;
- If releasing you will assist in reintegration back into the community;
- Whether the parole period will be sufficient to assist in your rehabilitation; and/or
- Any special circumstances such as possibility of deportation etc.
Possible Theft Defences
Self-Defence
The law states that:
- A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
- A person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary:
- to defend himself or herself or another person, or
- to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
- to protect property from unlawful taking, destruction, damage or interference, or
- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Necessity
For necessity to be established, the following must exist at the time of the commission of the offence:
- You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
- You honestly and reasonably believed that you were in a situation of immediate peril; and
- Your actions were reasonable and proportionate to the situation.
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Why Jackson John Defence Lawyers?
Our lawyers have a deep understanding of the law relating to Commonwealth theft. We can explain your legal rights and options to you in plain English and help you develop a strong defence strategy. We also care about our clients and understand that being charged with a crime can be a very stressful and traumatic experience. We will treat you with compassion and respect, and we will work hard to protect your rights and interests.
If you have been charged with Commonwealth theft, do not hesitate to contact Jackson John Defence Lawyers today. We are here to help you.
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