Criminal Offences Related To Unlawful Gambling in NSW

Whether it’s placing a bet at the track or trying your luck with the pokies, many Australians enjoy gambling as a form of entertainment.

However, the lawfulness if gambling in NSW is tightly regulated, with unlawful gambling operations carrying strict criminal penalties.

Here’s what you need to know.

The Offence of Conducting an Unlawful Gambling Operation

Section 93V of the Crimes Act 1900 (NSW) outlines the serious criminal offence of conducting an unlawful gambling operation. This offences carries a maximum penalty of a fine of $110,000 or imprisonment for 7 years or both.

An ‘unlawful gambling operation’ is defined under the Act as an operation involving at least 2 of the following elements:

• The keeping of at least 2 premises (whether or not either or both are gambling premises) that are used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998 (NSW).
• Substantial planning and organisation in relation to matters connected with any such form of prohibited gambling (as evidenced by matters such as the number of persons, and the amount of money and gambling turnover, involved in the operation);
• The use of sophisticated methods and technology (for example, telephone diverters, telecommunication devices, surveillance cameras and encrypted software programs) in connection with any such form of prohibited gambling or in avoiding detection of that gambling;
• A substantial loss of potential revenue to the State that would be derived from lawful forms of gambling.

The following activities are defined as an ‘unlawful game’ under section 5 of the Unlawful Gambling Act 1998 (NSW) and could constitute unlawful gambling unless allowed otherwise under law:

• The games called respectively fan-tan, pak-a-pu, two-up, hazard, baccarat, faro or roulette, or any similar game of chance;
• Any game of chance that is played at a table or with gaming equipment;
• Any game involving the use or operation of a prohibited gaming device (declared by regulations);
• Any game that involves the disposal of money by lottery or by chance;
• Any game in which the chances are not alike favourable to all the players, including among the players, the banker or other person (if any) by whom the game is managed or against whom the other players play or bet;
• Any game that involves playing or staking against a bank that does not pass from one participant in the game to another by chance or by regular rotation among all the participants in the game, and without any requirement to pay a charge or comply with any other condition;
• Any game with cards or other gaming equipment from which a person receives a percentage or share of the amount wagered;
• Any game of skill or chance, or of mixed skill and chance, in which any money is staked or risked by a person on an event or contingency.

When Are Gambling Activities Lawful?

Section 7 of the Unlawful Gambling Act 1998 (NSW) outlines a number of gambling activities that will are deemed lawful, including:

• Conducting a totalisator or betting activity under a license granted under the Totalizator Act 1997 (NSW) and in accordance with that Act.
• Conducting a community gaming activity as authorised under the Community Gaming Act 2018 (NSW).
• Conducting a public lottery in accordance with the Public Lotteries Act 1996 (NSW).
• Conducting or participating in a gam of two-up that is lawful under the Gambling (Two-up) Act 1998 (NSW).
• Casino-based gambling operations as authorised by the Casino Control Act 1992 (NSW).
• Keeping or operating an approved gaming machine within the meaning of the Gaming Machines Act 2001 (NSW) in a hotel or on the premises of a registered club in accordance with that Act.

Unlawful Betting Offences

A number of less serious criminal offences are also outlined under the Unlawful Gambling Act in relation to unlawful betting.

Unlawful betting includes:

• Betting on any event or contingency if the person is not present at a licensed racecourse and the bet is made with a bookmaker;
• Betting on any event or contingency (other than a horse race, harness race, greyhound race or declared betting event) when the person is present at a licensed racecourse;
  
• Betting on any event or contingency when the person is present at a racecourse and a trial meeting (within the meaning of the Betting and Racing Act 1998 ) is being held at that racecourse;
  
• Betting on any event or contingency when the person is present at a racecourse and a race meeting is being held at that racecourse in contravention of the Betting and Racing Act 1998.

Section 8(2) of the Act outlines that a person who engages in unlawful betting commits an offence, which carries a maximum penalty of a fine of $550 or 12 months imprisonment or both.

It is also an offence under section 8(3) of the Act for a person to make a bet on any horse race, harness race or greyhound race held anywhere in Australia, made knowing  (or would  reasonably be expected to know) the person taking the bet is not a legal bookmaker or does not have authorisation under law to take the bet. This offence carries a maximum penalty of a fine of $550 or 12 months imprisonment or both.

Unlawful Bookmaking Offences

Under section 9 of the Act it is an offence for a person to carry on bookmaking unless the person is a licensed bookmaker.

The maximum penalty for this offence is a fine of $1,100 fine or 2 years imprisonment for a first offence, and a fine of $5,500 or 2 years imprisonment or both for any second or subsequent offence.

Unlawful Gaming Offences

A number of offences are also outlined under the Act relating to unlawful games (as defined above). These include:

• An offence for organising, conducting or profiteering from an unlawful game under section 12 of the Act, carrying a maximum penalty of a $550 fine or 12 months imprisonment or both for a first offence, and  a $1,100 fine or 2 years imprisonment or both, for a second or subsequent offence.
• An offence for selling a ticket to an unlawful game under section 13 of the Act, carrying a maximum penalty of a $550 fine, 12 months imprisonment or both.
• An offence for participating in or betting on an unlawful game under section 14 of the Act, carrying maximum penalty of a $550 fine, 12 months imprisonment or both.

Offences Related To Minors

Offences also exist under the Act in relation to gambling activities engaged by minors.

Section 16 of the Act outlines an offence related to gambling with minors, applying to an adult who:

• Engaging in any form of gambling with a minor, or
• Engaging in any form of gambling with another person on behalf of a minor, or
•  For fee or reward, sending (or cause to be sent) to a minor any inducement to gamble such as an advertisement).

This offence carries a maximum penalty of a fine of $550.

Section 17 of the Act also outlines an offence applying to minors who participate in any forms of gambling. This carries a maximum penalty of a fine of $220.

The Offence of Cheating At Gambling

When it comes to lawful gambling, a further offence is outlined under section 18 of the Act for obtaining, or attempt to obtain, any money or advantage for himself or herself or any other person, by:

• Fraudulent trick, device, sleight of hand or representation; or
• Fraudulent scheme or practice; or
• Fraudulent use of gaming equipment or any other thing; or
• Fraudulent use of an instrument or article of a type normally used in connection with gambling (or appearing to be of a type normally used in connection with gambling),

This offence carries a maximum penalty of a fine of $1,100 or 2 years imprisonment or both.

Legal Defences

It is important to bear in mind that legal defence apply to all allegations of unlawful gambling.

The defence most frequently relied upon in these types of cases is the defence of duress, which is where you or someone close to you was threatened with imminent serious harm if you did not engage in the conduct,  and the threat was continuing and serious enough to justify your actions.

In the event evidence is raised of this defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply in your situation.

You must be found not guilty if the prosecution is unable to do this.

Other potential legal defences include necessity and self-defence.

Charged With an Offence Relating to Unlawful Gambling?

If you are going to court over an allegation of unlawful gambling, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options, the best way forward and fight for the optimal outcome.