Criminal Defence Factsheets
Money Laundering is an act which conceals the fact that money is the proceeds of crime. It’s called money laundering, because you’re ‘cleaning’ the money to make it usable.
Under the Crimes Act 1900 (NSW) section 193B, it is an offence to deal with the proceeds of crime knowing that it is proceeds of crime and intending to conceal that it is the proceeds of crime.
The term ‘proceeds of crime’ means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.
That offence carries a maximum penalty of up to 20 years imprisonment.
Defences to Money Laundering
If the matter ended up at a defended hearing with a charge under s193B(1), the prosecution would need to prove:
- The defendant ‘dealt’ with proceeds of crime;
- That the defendant knew they were proceeds of crime;
- The defendant intended to conceal that it is proceeds of crime.
If found guilty of the above charge, you could get a sentence to up to 20 years imprisonment.
Another money laundering crime
Another money laundering crime includes dealing with the proceeds of crime knowing they are proceeds of crime but not necessarily concealing that they were proceeds. This is a crime under section 193B(2) of the Crimes Act 1900 (NSW). This is an easier bar for the prosecution to prove and the maximum penalty is 15 years. On a defended hearing, the prosecution would need to prove that:
- The defendant dealt with proceeds of crime;
- The defendant knew they were proceeds of crime.
Another is dealing with proceeds of crime and being reckless as to whether they are proceeds of crime or not. This is an offence under section 193B(3) of the Crimes Act 1900 (NSW). Once again, this is a lower threshold, with maximum penalty of 10 years imprisonment. The prosecution would need to prove that;
- The defendant dealt with proceeds of crime;
- The defendant was reckless as to whether they were proceeds of crime.
“Deal with” includes to receive, possess, conceal, dispose of, bring or cause to be brought into NSW, or engage directly or indirectly in a transaction.
It is a complete defence under this section if the defendant can satisfy the court that they dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, State of Territory.
Other proceeds of crime offences
If a person deals with property, and there are reasonable grounds to suspect the property is proceeds of crime, and the value of the property is $100,000 or more, the maximum penalty is imprisonment for 5 years. Where the value of the property is less than $100,000, the maximum prison term is 3 years.
What are reasonable grounds?
The legislation includes a non-exhaustive list of potential scenarios where there would be reasonable grounds to suspect that property is proceeds of crime. This includes:
- a dealing involving using one or more accounts held in false names;
- the value of the property involved in the dealing is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the dealing occurs;
- a dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 of the Commonwealth that would otherwise apply to the transactions;
- the dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Commonwealth Anti-Money Laundering and Counter-Terrorism Financing Act 2006 that would otherwise apply to the transactions; and others.
A ‘serious offence’ is an offence which can brought on indictment. This is typically any crime with a penalty of 2 years imprisonment of more.
Alternative verdicts to a money laundering charge
Under section 193E of the Crimes Act 1900 (NSW), the jury is able to to give alternative verdicts. This can happen if they don’t think the person is guilty of the offence before them.
For example, in a hypothetical case the defendant is facing charges of money laundering (s193B(1)). However, the jury doesn’t think the prosecution proved beyond a reasonable doubt that they intended to conceal the money. Then, the jury could find them guilty of s193B(2) or (3).
Money Laundering Criminal Lawyers
O’Brien Criminal & Civil Solicitors has an accredited specialist in Criminal Law. Our team of experienced criminal solicitors in our Sydney offices have successfully represented those facing charges of money laundering.