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Bikie Gangs: Consorting with Criminal Offenders

Bikie Gangs: Consorting with Criminal Offenders. See http ://bit.ly/roliaomcgs for other case studies on the rule of law and bikie gangs. www.ruleoflaw.org.au. What is the RoLIA ?.

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Bikie Gangs: Consorting with Criminal Offenders

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  1. Bikie Gangs: Consorting with Criminal Offenders See http://bit.ly/roliaomcgsfor other case studies on the rule of law and bikie gangs www.ruleoflaw.org.au

  2. What is the RoLIA? • An independent, not for profit organisation promoting discussion of the rule of law and transparency in government • Runs initiatives in schools and universities to support learning about the rule of law • Conducts research in regard to rule of law issues

  3. How far should the law go to control gang violence? • Should laws to control criminal gangs allow police broader discretionary powers to search seize property, and conduct surveillance? • Is it fair to be found ‘guilty by association’ because you associate with a particular person or group? • If these powers exist, do adequate checks on their use exist? Are the use of these powers or decisions made reviewable by a court? How does the government balance the needs of society, with the rights and freedoms of the individual?

  4. A History of Gang Violence in Sydney http://www.smh.com.au/interactive/bikie-wars/bikiesatwar.html 08:20

  5. Consorting with Criminal Offenders Issues: • Laws regulating freedom of association • Punishment lasts beyond the sentence served • Is the definition of a convicted offender too broad?

  6. What is Consorting with Convicted Offenders? The Crimes Amendment (Consorting and Organised Crime) Act amended the Crimes Act 1900 (NSW) in March 2012: It added three sections, 93W – 93Y: 93W – Definitions of ‘consort’ and ‘convicted offender 93X – Defines the offence 93Y – Defences against the charge

  7. Why was this law enacted? Second reading speech in the NSW Legislative Assembly: ‘The amendments contained in this bill represent an aggressive signal to criminal groups in NSW; their continued operation will not be tolerated, and members of such groups will be dealt with severely when they are called to account for their actions.’

  8. Crimes Act 1900 (NSW) s93w-y 93W Definitions In this Division: "consort" means consort in person or by any other means, including by electronic or other form of communication. "convicted offender" means a person who has been convicted of an indictable offence (disregarding any offence under section 93X).

  9. 93X Consorting • A person who: • habitually consorts with convicted offenders, and • consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both. (2) A person does not "habitually consort" with convicted offenders unless: • the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and • the person consorts with each convicted offender on at least 2 occasions. (3) An "official warning" is a warning given by a police officer (orally or in writing) that: • a convicted offender is a convicted offender, and • consorting with a convicted offender is an offence.

  10. 93Y Defence The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances: • consorting with family members, • consorting that occurs in the course of lawful employment or the lawful operation of a business, • consorting that occurs in the course of training or education, • consorting that occurs in the course of the provision of a health service, • consorting that occurs in the course of the provision of legal advice, • consorting that occurs in lawful custody or in the course of complying with a court order.

  11. Charlie Foster: The First Person Convicted of Consorting in NSW Watch the clip from ABC’s 7.30: http://www.abc.net.au/7.30/content/2012/s3544879.htm

  12. Charles Foster • Found guilty of consorting in July 2012 of consorting with three convicted offenders • Received a sentence of 12 months imprisonment with a non-parole period of 9 months • Foster has no connection with Bikie gangs

  13. Responses Professor of Criminal Law at UNSW, Alex Steele: ''It gives too much discretion to police and undermines freedom of expression and freedom of association. If the impetus driving this is that police can't compel witnesses to talk to them, that is fundamentally a failure of police intelligence. This will simply increase the pool of people who can be arrested. But there's no requirement that they would have anything to do with the shootings. ''In a modern-day society there should not be an offence of speaking to anybody unless the nature of a conversation is a conspiracy,'' he said. http://www.smh.com.au/opinion/political-news/ofarrells-consorting-law-slammed-as-easy-politics-20120213-1t26v.html#ixzz26p7wX2WF Read Prof. Steele’s paper on the history of consorting on AustLII: http://bit.ly/PD8hT6

  14. Responses “The magistrate who convicted Mr Foster is reported as saying the consorting law highlights the concern of the community in relation to “individuals that have a criminal propensity” of associating with people who have been convicted of an indictable offence. How do you determine who has such criminal propensity? If you are truly interested in keeping the person away from criminals why not make appropriate orders that he keep a certain distance from them, why send him to jail?” Robin Speed, President of RoLIA in The Australian 24/08/12

  15. On Appeal • The consorting charge was successfully appealed in August in the Armidale District Court • The prosecution admitted the case against Foster was inadequate • Foster was able to withdraw his guilty plea and obtain a retrialfor September 24, 2012

  16. Nomads in Court for Consorting See our media file: http://www.scoop.it/t/motorcycle-gangs-and-the-law-in-australia http://www.smh.com.au/nsw/bikies-to-fight-consorting-charge-in-court-20120627-211im.html

  17. Final Thoughts • Should punishment for a criminal offence continue after the sentence has been served? Is this fair? Does it undermine the purpose of punishing offenders? • How does the government balance making laws which keep people safe versus allowing to retain rights and freedoms? • Is a prison sentence the most appropriate penalty for a person whose offence is hanging around with ex-prisoners?

  18. Rule of Law Institute of AustraliaSee http://bit.ly/roliaomcgs for other case studies related to the law and bikie gangs.Thank youCase studies on a variety of legal studies topics are available at our websitewww.ruleoflaw.org.au

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