Deal with proceeds of crime.

We explain the elements, defences & penalties

The offence of Dealing with proceeds of crime is prosecuted under Section 194 of the Crimes Act 1958 (Vic). There are several offences contained under Section 194 and the severity of the penalty depends upon the alleged culpability of the offender.

Elements of offence

Section 194 provides for 3 alternative bases of culpability for the offence of Dealing with Proceeds Of Crime and each is a discrete offence with it's own penalty:

- actual knowledge (Section 194 (2) of the Crimes Act 1958 (Vic).

- recklessness (Section 194(3) of the Crimes Act 1958 (Vic).

- negligence (Section 194(4) of the Crimes Ac 1958 (Vic).

The prosecution must prove beyond reasonable doubt the following:

– A person deals with proceeds of crime; AND

– At the time of dealing with the proceeds of crime she or he knows it to be proceeds of crime; or

- is reckless as to whether he or she is dealing with proceeds of crime; or

- is negligent as to whether he or she is dealing with proceeds of crime.

Key terms defined (Section 193)

"deal with" - includes receive, possess, conceal or dispose of

"proceeds of crime" - means property that is derived or realised, directly or indirectly, by any person from the commission of—

(a) an offence referred to in Schedule 1 to the Confiscation Act 1997 ; or

(b) an offence against a law of the Commonwealth that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence); or

(c) an offence against a law of another State, a Territory or a country outside Australia that would have constituted an offence referred to in paragraph (a) if it had been committed in Victoria

"property" - includes money and all other property real or personal including things in action and other intangible property.

An alternative offence to Deal with proceeds of crime (Section 194 of the Crimes Act 1958 (Vic)) is Deal with property reasonably suspected of being proceeds of crime (Section 195 of the Crimes Act 1958 (Vic)). The key difference between the two offences is the extent to which the prosecution can prove actual knowledge that the property in question was proceeds of crime as opposed to a reasonable suspicion.

Unsurprisingly, the offence is frequently associated with charges alleging Trafficking a drug of dependence.

Penalties

Under section 194, the severity of the penalty depends upon the alleged culpability:

- actual knowledge - 15 years imprisonment.

- recklessness - 10 years imprisonment

- negligence - 5 years imprisonment

Sentencing outcomes

The offence of Dealing with proceeds of crime is an indictable offence. The gravity of the offence will vary significantly between cases, and consequently so do the outcomes. Key determinants of the objective gravity of the offending turn on the degree of culpability and the value of the property alleged to be the proceeds of crime. The offence can be heard and finalised in the Magistrates' Court where the quantum does not exceed $100,000.

As a general guide, the Sentencing Advisory Council has published the top 4 sentencing outcomes for this offence when heard in the Magistrates’ Court for the period 2016 – 2019:

Imprisonment – 48%

Community Correction Order – 25%

Fine – 15%

Adjourned undertaking/discharge/dismissal – 10%

Defences

A factual dispute as to whether an accused person dealt with property said to be proceeds, or whether the prosecution can prove the requisite intent (knowledge) as to whether an accused knew he or she was dealing with property that was proceeds of crime.

Early preparation is important

The circumstances of an offence of Deal with proceeds of crime can vary greatly, and consequently so do the penalties for the offence. Call our office on (03) 9668 7600 for an obligation free case assessment.