Section 390.5 Criminal Code Act | Committing Offence for Criminal Organisation


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The Legislation

Section 390.5 of the Criminal Code Act 1995 (Cth) is Committing Offence for Criminal Organisation and is extracted below.

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390.5 Committing an offence for the benefit of, or at the direction of, a criminal organisation

Offence committed for the benefit of an organisation

(1) A person commits an offence if:

(a) the person commits an offence against any law (the underlying offence); and

(b) the underlying offence is for the benefit of an organisation; and

(c) the organisation consists of 2 or more persons; and

(d) the organisation’s aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the underlying offence is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 7 years.

Offence committed at the direction of an organisation

(2) A person commits an offence if:

(a) the person commits an offence against any law (the underlying offence); and

(b) the person engaged in the conduct constituting the underlying offence at the direction of an organisation or of a member of an organisation; and

(c) the organisation consists of 2 or more persons; and

(d) the organisation’s aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the underlying offence is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 7 years.

Fault elements

(3) There is no fault element for the physical elements described in paragraphs (1)(a) and (2)(a) other than the fault elements (however described), if any, for the underlying offence.

Absolute liability

(4) Absolute liability applies to paragraphs (1)(e) and (f) and (2)(e) and (f).

Note:     For absolute liability, see section 6.2.

Avoiding multiplicity of proceedings and punishments

(5) To avoid doubt, the person may be convicted of an offence against subsection (1) or (2) even if the person has not:

(a) been convicted of the underlying offence; or

(b) been the subject of an order under section 19B (Discharge of offenders without proceeding to conviction) of the Crimes Act 1914, or a corresponding law of a State, Territory or foreign country, relating to the underlying offence.

(6) If a person has been convicted or acquitted of a foreign offence in respect of conduct, the person cannot be convicted of an offence against this section in respect of that conduct.

Note:      If the underlying offence is an Australian offence, section 4C of the Crimes Act 1914 prevents the person from being punished twice under Australian law (once under this section and once under the Commonwealth, State or Territory law creating the underlying offence) for the act or omission constituting the underlying offence.

Likely benefits

(7) To avoid doubt, the person may be convicted of an offence against subsection (1) because the underlying offence is likely to result in the organisation or at least one member receiving benefits as described in the definition of for the benefit of in subsection 390.1(1), even if the organisation or member does not actually receive such a benefit.