By a summons filed on 3 March 2021, the Commissioner of Police (the plaintiff) sought a serious crime prevention order pursuant to s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (the Act) against each of the three named defendants. The summons was supported by an affidavit of Detective Bruce Groenewegen of 26 February 2021 which was read without objection. As between the plaintiff and the second defendant, the proceedings have resolved. As between the plaintiff and the third defendant, the plaintiff's application is listed for hearing later this year.
On 1 September 2021, I made an order against the first defendant pursuant to s 5 of the Act, for a period of 9 months commencing on 1 September 2021, in the terms set out in Annexure A to the order. I also noted an undertaking given by the first defendant in respect of Annexure B to the order.
At the time of making that order I indicated that my reasons would be provided at a later date. Those reasons now follow.
[2]
The Comancheros Outlaw Motorcycle Gang Club
The Comancheros Outlaw Motorcycle Club (the Comancheros) is an outlaw motorcycle club gang (OMCG). [1] OMCGs and their members consider themselves, and are considered by others, including their rivals, as "outlaws" who are not bound by the same laws as the rest of society. Their members advertise themselves as such by way of various indicia including patches, jewellery and tattoos, and defend their exclusive right to wear and display the indicia of the club to which they belong.
Commissioner of Police, NSW Police Force v Bazzi & Ors [2021] NSWSC 1150 | Case summary | Zoe
OMCGs generally have a hierarchical structure, and are governed by rules which are often enforced by violence. Their members are often involved in the commission of serious criminal activity including murder, drug manufacture, cultivation and distribution, organised property theft, fraud, violence, extortion, intimidation, riot, affray, corruption of justice and weapons-related offences. OMCGs are recognised by law enforcement agencies throughout Australia, and in various parts of the world, as organised criminal groups, the members of which pose a significant threat to public safety. [2]
[3]
The first defendant
The first defendant has been associated with the Comancheros since 2009. There is evidence to support the conclusion that he: [3]
1. was, at the very least, an associate of the Comancheros between 2009 and 2011;
2. was a full member of the Comancheros by at least January 2012;
3. may have held the rank of Sergeant at Arms of the Sydney Chapter of the Comancheros in 2012 and may have concurrently held the rank of National Sergeant at Arms;
4. may have held the rank of National President of the Comancheros in, or about 2017; and
5. has actively concealed the nature of his membership of the Comancheros from law enforcement authorities.
The first defendant has been convicted of a number of criminal offences, including the supply of prohibited drugs. It is alleged that he has been involved in other serious crime related activity involving violence. He has been the subject of a firearms prohibition order [4] and has, since 2014, been a close associate of Mark Buddle, identified as the International Commander of the Comancheros since at least 2014. [5]
[4]
THE LEGISLATIVE SCHEME
Section 5(1) of the of the Act is in the following terms:
Making of serious crime prevention orders
(1) An appropriate court may, on the application of an eligible applicant, make an order (a "serious crime prevention order") against a specified person if:
(a) in the case of a natural person--the person is 18 years old or older, and
(b) the court is satisfied that:
(i) the person has been convicted of a serious criminal offence, or
(ii) the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
(c) the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
[5]
The steps to be taken in considering whether to make an order
The steps to be taken in determining whether to make an order pursuant to s 5 of the Act were set out in Vella v Commissioner of Police (NSW). [6] Although the first defendant did not oppose the making of an order, it remains necessary for me to consider those various steps in order to be satisfied that the order sought is appropriate.
[6]
The first defendant's age
Section 5(1)(a) requires that any natural person against whom an order is sought be 18 years or older. [7] There is no issue that this requirement is met.
[7]
The first defendant's conviction for, or involvement in, serious crime related activity
Pursuant to s 5(1)(b), I must be satisfied that the first defendant has been convicted of a serious criminal offence, or has been involved in serious crime related activity for which he has not been convicted of a serious criminal offence. In Vella it was observed [8] that this step involves looking backwards, and focussing upon the person's past conviction(s) for a serious criminal offence, or past involvement in serious crime related activity.
The term "serious criminal offence" is defined in s 3(1) the Act as having the same meaning as that which is given to that term in the Criminal Assets Recovery Act 1990 (NSW) (the CAR Act). Section 6(2) of the CAR Act defines a "serious criminal offence" as:
…
1. a drug trafficking offence; or
2. a prescribed indictable offence, or an indictable offence of a prescribed kind, that is of a similar nature to a drug trafficking offence, including in either case an offence under a law of the Commonwealth, another State or Territory; or
3. an offence that is punishable by imprisonment for 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide.
4. …
The term "drug trafficking offence" is defined in s 6(3) of the CAR Act to include an offence contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act) of supplying a prohibited drug.
The first defendant has been convicted of supplying prohibited drugs, contrary to s 25 of the DMT Act, for which he was sentenced to a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 2 years. [9] In those circumstances, the requirement in s 5(1)(b) is satisfied. It is therefore not necessary for me to determine whether he has been involved in any serious crime related activity for which he has not been convicted, and I make no finding in that regard.
[8]
The likelihood of the first defendant's involvement in serious criminal activity
The third step, arising from s 5(1)(c) of the Act, requires me to assess whether there is a real likelihood, or in other words a real and significant risk, that the first defendant will be involved in serious crime related activities. [10] It is important to emphasise that s 5(1)(c) does not require that I be satisfied that there is a real or significant risk that first defendant will himself commit a serious criminal offence, only that there is a real likelihood that he will be involved in serious crime related activities.
The unchallenged evidence of Detective Groenewegen is that:
1. continued membership of any OMCG exposes the first defendant "to a very high likelihood that [he] will be involved in future conduct which would constitute an offence" such as drug trafficking, theft, fraud, forgery, money-laundering, extortion and violence; [11]
2. the risk that the first defendant will be involved in serious crime related activity is increased by his long and close involvement with OMCGs, and compounded by his seniority within, and associations with other senior and influential members of, such groups; [12]
3. even if the first defendant did not directly engage in illegal conduct, his position and seniority within the Comancheros would enable him to sanction the commission of criminal activity by others; [13] and
4. it is extremely likely that the first defendant would have knowledge of the commission of illegal conduct, before or after it occurred, and would have a propensity to conceal material particulars of such conduct from the authorities. [14]
As I have indicated, it is not necessary for me to determine whether there is a real or significant risk that the first defendant himself will commit a serious criminal offence. In that respect, I make no finding. However, on the basis of the evidence to which I have referred, I am satisfied that there is a real and significant risk that the first defendant will be involved in serious crime related activities.
[9]
Preventing, restricting or disrupting the first defendant's likely involvement in serious crime related activity
The fourth step, which is also set out in s 5(1)(c), requires the Court to consider whether the facts establish reasonable grounds to believe that the order sought would have the effect of preventing, restricting or disrupting the first defendant's likely involvement in serious crime related activities. This requires the Court to survey the range of possible orders and to consider whether there is a real likelihood that the order will prevent, restrict, or disrupt his likely involvement. The words "prevent", "restrict", and "disrupt" are not defined, and bear their ordinary meaning. This includes a result that is short of entire prevention, but which limits the extent of the person's likely involvement in serious crime related activity. [15]
The proposed conditions of the order sought are directed towards (inter alia) prohibiting the use of an alias by the first defendant, restricting methods of communication with others, restricting his possession of cash and his conduct of bank accounts, and restricting those with whom he may associate. In these circumstances, I am satisfied that the making of the order sought would protect the public in the manner contemplated by s 5(1)(c).
[10]
The necessity for the order to be appropriate
Section 6(1) of the Act requires that any prohibitions, restrictions, requirements and other provisions ordered be such as the Court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the first defendant in serious crime related activities. Although s 6(1) of the Act provides that the Court "may" impose restrictions that it considers appropriate, this is an enabling word with compulsory force when what is sought is the advancement of public justice. [16] The section requires that the order be reasonable and adapted to its purpose. [17]
It follows from the observations that I have made regarding the nature of the restrictions sought to be imposed that I consider the terms of the proposed order to be appropriate.
[11]
Should an order be made?
Section s 5(1) of the Act empowers, but does not require, the Court to make the order. The fulfilment of the statutory conditions described in the steps above confers a discretion to make an order. [18] In light of the evidence in the present case to which I have referred, there is no reason why the order sought should not be made. Counsel for the first defendant did not submit to the contrary.
[12]
Endnotes
CB 35 at [12].
CB 35 - 36 at [10].
CB 37 at [16]..
CB 37 at [16]; pp.457 - 461; pp.470 - 507.
CB 461.
[2019] HCA 38; (2019) 374 ALR 1.
Vella at [40].
At [41].
CB 471 - 472; 493 - 507.
Vella at [43].
At [20].
At [21].
At [22].
At [23].
Vella at [47].
Vella at [49].
Vella at [50].
Vella at [54].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 September 2021