Bikie Laws – Vicious Lawless Associate

 Qld Bikie Laws

In late 2013 the Queensland government introduced what it declared were the harshest bikie laws in the country.  Indeed, the Qld bikie laws are harsh, with a reversed onus of proof in relation to bail applications and new offences based on mere membership of a group declared at the discretion of the Qld Attorney General to be a declared organisation.VLAD Laws
For more information read below.

Vicious Lawless Associate

A person is a vicious lawless associate if the person—

  1. commits a declared offence; and
  2. at the time the offence is committed, or during the course of the commission of the offence, is a participant in the affairs of an association (relevant association); and
  3. did or omitted to do the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association.

However, a person is not a vicious lawless associate if the person proves that the relevant association is an association whose members do not have as their purpose, or 1 of their purposes, engaging in, or conspiring to engage in, declared offences.

New powers enable Qld's Attorney General to indefinitely detain prisoners

New powers enable Qld’s Attorney General to indefinitely detain prisoners

Mandatory Sentences

A court sentencing a vicious lawless associate for a declared offence must impose all of the following sentences on the vicious lawless associate—

  1. A sentence for the offence under the law apart from this Act and without regard to any further punishment that may or will be imposed under this Act;
  2. A further sentence of 15 years imprisonment served wholly in a corrective services facility;
  3. If the vicious lawless associate was, at the time of the commission of the offence, or during the course of the commission of the offence, an office bearer of the relevant association—a further sentence of 10 years imprisonment served wholly in a corrective services facility which must be served cumulatively with the further sentence.

A vicious lawless associate is not eligible for parole during any period of imprisonment for a further sentence.

Declared Offence

The Legislation prescribes a number of offences as “declared offences” (see schedule 1).

These declared offences comprise various sections of the following Acts:

  1. Corrective Services Act 2006
  2. Criminal Code
  3. Criminal Proceeds Confiscation Act 2002
  4. Drug Misuse Act 1986
  5. Weapons Act 1990

The declared offences include many charges that would otherwise be deemed relatively trivial such as possession of a dangerous drug, receiving tainted property or producing a dangerous drug.  It should be noted however that it is not enough for the prosecution to merely allege that a vicious lawless associate was convicted in for a declared offence.  The prosecution needs to satisfy the third limb of the section.  That is that the alleged associate did or omitted to do the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association

Office Bearer

In addition to the mandatory sentence that is imposed upon an associate, a further mandatory period of ten (10) years is imposed for a person who is found to be an office bearer of the association.  The legislation proscribes a very broad definition of office bearer:

  1. a person who is a president, vice-president, sergeant-at-arms, treasurer, secretary, director or another office bearer or a shareholder of the association; or
  2. a person who (whether by words or conduct, or in any other way) asserts, declares or advertises himself or herself to hold a position of authority of any kind within the association.

While a president or vice president etc is a fairly obvious “office bearer” the inclusion of the second limb is of greater concern.  An associate who in any way asserts, declares or advertises themselves to hold a position of authority is subject to mandatory period of imprisonment of 25 years for a declared offence.

Knowingly Present in a Public Place

The Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 inserts a new offence of “Participants in criminal organisation being knowingly present in public places” into section 60A of the Criminal Code of Queensland.

Any person who is a participant in a criminal organisation and is knowingly present in a public place with 2 or more other persons who are participants in a criminal organisation commits an offence.

Minimum penalty—6 months imprisonment served wholly in a corrective services facility.

Maximum penalty—3 years imprisonment.

It is a defence to a charge of an offence against subsection (1) to prove that the criminal organisation is not an organisation whose participants have as their purpose, or 1 of their purposes, engaging in, or conspiring to engage in, criminal activity.

For the purpose of this offence a member, of an organisation, includes an associate member, or prospective member, however described.

Knowingly Present in a Prescribed Place

The Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 inserts a new offence of “Participants in criminal organisation being knowingly present in a prescribed place” into section 60B of the Criminal Code of Queensland.

Any person who is a participant in a criminal organisation and enters, or attempts to enter, a prescribed place commits an offence..

Minimum penalty—6 months imprisonment served wholly in a corrective services facility.

Maximum penalty—3 years imprisonment.

Any person who is a participant in a criminal organisation and attends, or attempts to attend, a prescribed event commits an offence.

Minimum penalty—6 months imprisonment served wholly in a corrective services facility.

Maximum penalty—3 years imprisonment.

Recruiting

The Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 inserts a new offence of “recruiting persons to become participants in the organisation” into section 60B of the Criminal Code of Queensland.

Any person who is a participant in a criminal organisation and recruits, or attempts to recruit, anyone to become a participant in a criminal organisation commits an offence.

Minimum penalty—6 months imprisonment served wholly in a corrective services facility.

Maximum penalty—3 years imprisonment.

Crime and Misconduct Commission

The Crime and Misconduct Commission has the power to compel people to attend and provide evidence at Misconduct Hearings, Crime Hearings and the new category of  investigative function.

Ordinarily a person can be excused from attending, providing a document or answering a question where it is found that the person has a genuine fear of

  1. personal physical harm or damage to the person’s property; or
  2. physical harm to someone else, or damage to the property of someone else, with whom the person has a connection or bond;

This protection is specifically removed by providing that it is not a reasonable excuse to fail to comply with an attendance notice or requirement made under section 75B if the hearing relates to a criminal organisation or a participant in a criminal organisation.

Contempt proceedings

Where a person fails to take the oath, provide material or answer a question the person is said to be in contempt of the commission and can be charged with the offence of contempt.  Previously a court hearing the matter had the discretion to impose an appropriate sentence based upon the particular facts and circumstances peculiar to the matter.  The Criminal Organisation Disruption Act provides that the minimum punishment the court must impose is—

  1. for a first contempt—imprisonment for the term decided by the court; or
  2. for a second contempt relating to a hearing dealing with the same subject matter as that dealt with in a hearing in which the person’s contempt was first certified—2 years and 6 months imprisonment; or
  3. for a third or subsequent contempt relating to a hearing dealing with the same subject matter as that dealt with in at least 2 hearings in each of which the person’s contempt was certified—5 years imprisonment.

Liquor Act Offences

The legislation prohibits members of declared organisations from wearing prescribed items on licensed premises.  For more information see our blog article.

Bail Applications

Pursuant to section 9 of the Bail Act 1980 (“the Bail Act”) a person is entitled to a prima facie grant of bail.

 An alleged participant in a Criminal Organisation  is however in a “show cause” position pursuant to Section 16(3A)(a) of the Bail Act.  This Section provides that the Court shall refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified.

An application for bail is additionally governed by Practice Direction 21 of 2013.  Unlike other applications for bail, where the application proceeds on oral submissions, an application for bail by an alleged participant in a criminal organisation requires the parties to provide evidence on Affidavit or such evidence as the Court sees fit.  Such affidavit material is to be provided at least one clear day prior to the Application being heard.

In addition the Practice Direction requires the parties to prepare a written outline of submissions.  The process thereby means that an application for bail is delayed, by at least one day, but in practice will require further delay while affidavit material is obtained and written outlines of submissions are prepared.

Appeal decisionsSchedule 1.

Criminal Code

  1. Section 61 (Riot), if the offence is committed in circumstances rendering the offender liable to imprisonment for 7 years or more
  2. Section 72 (Affray)
  3. Section 119B (Retaliation against or intimidation of judicial officer, juror, witness etc.)
  4. Section 140 (Attempting to pervert justice)
  5. Section 141 (Aiding persons to escape from lawful custody)
  6. Section 208 (Unlawful sodomy)
  7. Section 210 (Indecent treatment of children under 16)
  8. Section 213 (Owner etc. permitting abuse of children on premises)
  9. Section 215 (Carnal knowledge with or of children under 16)
  10. Section 216 (Abuse of persons with an impairment of the mind)
  11. Section 217 (Procuring young person etc. for carnal knowledge)
  12. Section 218 (Procuring sexual acts by coercion etc.)
  13. Section 219 (Taking child for immoral purposes)
  14. Section 222 (Incest)
  15. Section 228 (Obscene publications and exhibitions), if
  16. Section 228(2) or (3) applies
  17. Section 228A (Involving child in making child exploitation material)
  18. Section 228B (Making child exploitation material)
  19. Section 228C (Distributing child exploitation material)
  20. Section 228D (Possessing child exploitation material)
  21. Section 229B (Maintaining a sexual relationship with a child)
  22. Section 229G (Procuring engagement in prostitution)
  23. Section 229H (Knowingly participating in provision of prostitution)
  24. Section 229HB (Carrying on business of providing unlawful prostitution)
  25. Section 229K (Having an interest in premises used for prostitution etc.)
  26. Section 229L (Permitting young person etc. to be at place used for prostitution)
  27. Section 302 (Definition of murder) and 305 (Punishment of murder)
  28. Section 303 (Definition of manslaughter) and 310 (Punishment of manslaughter)
  29. Section 306 (Attempt to murder)
  30. Section 307 (Accessory after the fact to murder)
  31. Section 308 (Threats to murder in document)
  32. Section 309 (Conspiring to murder)
  33. Section 315 (Disabling in order to commit indictable offence)
  34. Section 316 (Stupefying in order to commit indictable offence)
  35. Section 317 (Acts intended to cause grievous bodily harm and other malicious acts)
  36. Section 320 (Grievous bodily harm)
  37. Section 320A (Torture)
  38. Section 321 (Attempting to injure by explosive or noxious substances)
  39. Section 321A (Bomb hoaxes)
  40. Section 322 (Administering poison with intent to harm)
  41. Section 323 (Wounding)
  42. Section 327 (Setting mantraps)
  43. Section 328A(4) (Dangerous operation of a vehicle)
  44. Section 339 (Assaults occasioning bodily harm)
  45. Section 340 (Serious assaults)
  46. Section 346 (Assaults in interference with freedom of trade or work)
  47. Section 349 (Rape)
  48. Section 350 (Attempt to commit rape)
  49. Section 351 (Assault with intent to commit rape)
  50. Section 352 (Sexual assaults)
  51. Section 354 (Kidnapping)
  52. Section 354A (Kidnapping for ransom)
  53. Section 359E (Punishment of unlawful stalking)
  54. Section 398 (Punishment of stealing), if item 14 (Stealing firearm for use in another indictable offence) or 15 (Stealing firearm or ammunition) applies
  55. Section 411(1) (Punishment of robbery)
  56. Section 411(2) (Punishment of robbery)
  57. Section 412 (Attempted robbery)
  58. Section 415 (Extortion)
  59. Section 419(1) (Burglary), if section 419(3) or (4) applies
  60. Section 433(1)(b) (Receiving tainted property)

Criminal Proceeds Confiscation Act 2002

  1. Section 250 (Money laundering)

Drugs Misuse Act 1986

  1. Section 5 (Trafficking in dangerous drugs)
  2. Section 6 (Supplying dangerous drugs)
  3. Section 7 (Receiving or possessing property obtained from trafficking or supplying)
  4. Section 8 (Producing dangerous drugs)
  5. Section 9 (Possessing dangerous drugs)

 Weapons Act 1990

  1. Section 50(1) (Possession of weapons), if the offence is committed in circumstances rendering the offender liable to imprisonment for 7 years or more
  2. Section 50B(1) (Unlawful supply of weapons), if the offence is committed in circumstances rendering the offender liable to imprisonment for 7 years or more
  3. Section 65(1) (Unlawful trafficking in weapons)

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For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

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