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What is a Conspiracy in the Commonwealth Criminal Law? – Criminal Law

What is a Conspiracy in the Commonwealth Criminal Law? – Criminal Law

What is a Conspiracy in the Commonwealth Criminal Law? – Criminal Law


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A Sydney man accused of serious drug offences is on the run from
the police after allegedly disabling his ankle monitor while on
bail.

Northern Beaches restauranter Mostafa Baluch is alleged to have
financed a major cocaine importation syndicate.

He was arrested in June 2021 over allegations he conspired to
import 900 kilograms of the drug from Ecuador.

He was
charged with a series of offences
, including conspiracy to
import a commercial quantity of border controlled drugs, as well as
three counts of importation over three smaller amounts  of
cocaine allegedly imported through air cargo.

According to police, Mr Baluch’s arrest was the result
of 
Operation Ironside
, a global sting which resulted in more than
800 arrests worldwide.

Police developed a phone app, known as ANOM, which worked in a
similar way to mainstream apps like Snapchat and WhatsApp. They
claimed the app ensured anonymity, marketing it to members of
criminal syndicates who ‘took the bait’ and allegedly
uploaded and distributed the technology amongst themselves via
customised phones.

The app was secretly managed by law enforcement authorities, and
those who were tricked into believing their communications could
not be monitored or traced were instead tracked in ‘real
time’.

Police say the communications included the arranging of drug
importation, drug supply, money laundering and even murder
plots.

Mr Baluch was refused bail at the police station and the matter
then came before a
Sydney Local Court,
 where it was granted on strict
conditions including the deposit of a $4 million security,
electronic monitoring and daily reporting to Mona Vale police
station.



Breach of bail in New South Wales

If  a person is alleged to have failed to comply with a
condition of bail, police have some discretion regarding whether to
overlook the breach or 
charge the person with breach of bail.

In the event of the latter, the person will be arrested and
brought before a court, which can choose to:

  • release the person on the original bail conditions ,

  • change or vary the original bail conditions, or

  • revoke or refuse bail.

If the bail is revoked, the person will then be remanded in
custody.



Importing a commercial quantity of border controlled drugs

Importing or Exporting a Commercial Quantity of a Border
Controlled Drug is an offence under 
Section 307.1 of the Criminal Code Act 1995
 which carries
a maximum penalty of life in prison.

To establish the offence, the prosecution must prove beyond
reasonable doubt that:

  1. You intentionally imported or exported a substance,

  2. The substance was a commercial quantity of a border controlled
    drug or plant, and

  3. You knew or were reckless as to whether the substance was a
    border controlled drug or plant.

‘Import’ includes to bring into Australia, and to deal
with the substance in connection with its importation.

‘Export’ means to take from Australia.

You were ‘reckless’ if you were aware it was likely that
the substance was a border controlled drug or plant but went ahead
with your actions regardless.

Examples of ‘commercial quantities’ include:

  • At least 500 grams of MDMA (or ‘ecstacy’),

  • At least 750 grams of amphetamines,

  • At least 1.5 kgs of heroin,

  • At least 2 kgs of cocaine, and

  • At least 100 kgs of cannabis leaf.

A defence to the charge is ‘
duress
‘, which means:

  1. Your actions were due to a threat of death or serious injury to
    you and/or a member of your family,

  2. There was no reasonable way to render the threat ineffective,
    and

  3. Your conduct was a reasonable response to the threat.



What is a conspiracy under the Commonwealth criminal law?


Section 11.5 of the Criminal Code Act 1995
 (Cth) sets out
the law relating to conspiring to commit offences under the Act,
including drug importation.

The section makes clear that

“[a] person who conspires with another person to commit an
offence punishable by imprisonment for more than 12 months, or by a
fine of 200 penalty units or more, commits the offence of
conspiracy to commit that offence and is punishable as if the
offence to which the conspiracy relates had been
committed.”

It states that a person can only be found guilty of a
conspiracy, if:

  1. He or she entered into an agreement with one or more other
    persons,

  2. At least one other party to the agreement intended that an
    offence would be committed pursuant to the agreement, and

  3. At least one other party to the agreement committed an overt
    act pursuant to the agreement.

The section provides that a person may be found guilty of
conspiracy to commit an offence even if:

  1. Committing the offence was impossible,

  2. The only other party to the agreement is a body corporate,
    or

  3. Each other party to the agreement is at least one of the
    following:

    • a person who is not criminally responsible;

    • a person for whose benefit or protection the offence exists;
      or


  4. All other parties to the agreement have been acquitted of the
    conspiracy.

The section further provides that a person cannot be found
guilty of conspiracy to commit an offence if:

  1. All other parties to the agreement were acquitted of the
    conspiracy and a finding of guilt would be inconsistent with their
    acquittal, or

  2. He or she is a person for whose benefit or protection the
    offence exists.

Additionally, the section states that  a person cannot be
found guilty of conspiracy to commit an offence if, before the
commission of an overt act pursuant to the agreement, the
person:

  1. Withdrew from the agreement, and

  2. Took all reasonable steps to prevent the commission of the
    offence.

The section also contains the unusual provision for a court to
dismiss a charge of conspiracy if the court finds that this is in
the interests of justice.

All defences, procedures, limitations and qualifying provisions
that apply to the substantive offence apply also to the offence of
conspiracy to commit that offence.

Due to these provisions, prosecuting bodies such as the Office
of the Commonwealth Director of Public Prosecutions (OCDPP) are
often reluctant to prosecute conspiracy offences.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.