Part 6Offences, penalties etc

Part 6—Offences, penalties etc 43—Aggravated offences (1) An aggravated offence is an offence committed in circumstances where— (a) the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or (b) in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation). (2) For the purposes of subsection (1)(b), a person will be taken to have identified himself or herself as belonging to, or as being associated with, a criminal organisation if the person displayed (whether on an article of clothing, as a tattoo or otherwise) the insignia of the criminal organisation unless the person proves that he or she did not display the insignia knowingly or recklessly. (3) Subsection (2) does not limit the ways in which a person may identify himself or herself as belonging to, or being associated with, a criminal organisation. (4) If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge. criminal organisation has the same meaning as in Part 3B of the Criminal Law Consolidation Act 1935. (6) This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence. Examples— 1 A person is charged with a basic offence and the court finds that the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence. 2 A person is charged with an aggravated offence and the court finds a number (but not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into account the established circumstances of and surrounding the aggravated offence (whether alleged in the instrument of charge or not) but must not (of course) take account of circumstances alleged in the instrument of charge that were not established. 44—Matters to be considered when court fixes penalty (1) In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration— (a) subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and (b) the quantity of the substance or goods involved in the commission of the offence; and (c) the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and (d) in the case of an offence against Part 5 Division 2 or 3— (i) the commercial or other motives of the convicted person in committing the offence; and (ii) the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and (daa) in the case of an offence against section 33—whether a child was present at any stage when the offence occurred; and (da) in the case of an offence against section 33F, 33H or 33I—whether the offence occurred within a school zone or at or near any prescribed place; and (e) any other relevant factor. (2) In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful. (3) If a person is convicted by a court of an indictable offence against this Act and an offence against section 32 of the Criminal Law Consolidation Act 1935 constituted of having the custody or control of a firearm or imitation firearm for the purpose of— (a) using, or causing or permitting another person to use, the firearm in the course of committing the indictable offence against this Act; or (b) carrying, or causing or permitting another person to carry, the firearm when committing the indictable offence against this Act, the court must make any sentences of imprisonment imposed for the 2 offences cumulative unless the court is satisfied that special reasons exist for not doing so. 45A—Expiation of simple cannabis offences (1) A prosecution for a simple cannabis offence cannot be commenced except by— (a) the Director of Public Prosecutions; or (b) a police officer; or (c) a person authorised in writing by the Director of Public Prosecutions to commence the prosecution. (2) Subject to this section, if a person (not being a child) is alleged to have committed a simple cannabis offence, then before a prosecution is commenced, an expiation notice must be given to the alleged offender under the Expiation of Offences Act 1996. (3) Expiation fees (which may vary according to any factor) may be fixed by regulation for the purposes of this section. (7) Non-compliance with subsection (2) does not invalidate a prosecution. (8) For the purposes of this section— simple cannabis offence means— (a) an offence against section 33K(2) involving the cultivation (not being artificially enhanced cultivation) of cannabis plants other than an offence involving the cultivation of a number of cannabis plants in excess of the number prescribed by regulation for the purposes of this paragraph; or (b) an offence against section 33L(2)(a) other than an offence involving the possession of quantities of cannabis, cannabis resin or cannabis oil in excess of the quantity prescribed by regulation for the purposes of this paragraph; or (c) an offence against section 33L(2)(b) other than an offence alleged to have been committed in— (i) a public place; or (ii) a place of a kind prescribed by regulation; or (d) an offence against section 33L(2)(c).