(c) if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in subsection (1).
360.3B Double jeopardy and alternative verdicts
Double jeopardy
(1) A person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to the aggravated offence that is alleged to have been committed in the period during which the person was alleged to have committed the aggravated offence.
(2) However, subsection (1) does not prevent an alternative verdict under subsection (4).
(3) A person who has been convicted or acquitted of a basic offence relating to an aggravated offence may not be convicted of the aggravated offence if any of the occasions relied on as evidence of the commission of the aggravated offence includes the conduct that constituted the basic offence.
Alternative verdict—aggravated offence not proven
(4) If, on a trial for an aggravated offence, the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of the basic offence relating to the aggravated offence;
it may find the defendant not guilty of the aggravated offence but guilty of the basic offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Definitions
(5) In this section:
aggravated offence means an offence against subsection 360.2(2) or 360.3(1A).
basic offence relating to an aggravated offence means:
(a) if the aggravated offence is an offence against subsection 360.2(2)—an offence against subsection 360.2(1); or
(b) if the aggravated offence is an offence against subsection 360.3(1A)—an offence against subsection 360.3(1).
360.4 Concurrent operation intended
(1) This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Division is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against this Division; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Division;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence against this Division;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence against this Division.
(4) A person punished for an offence against a law of a State or Territory referred to in subsection (2) in respect of particular conduct cannot be punished for an offence against this Division in respect of that conduct.
Division 361—International firearms trafficking
361.1 Definitions
In this Division:
export a thing, means export the thing from Australia.
firearm has the same meaning as in the Customs (Prohibited Imports) Regulations 1956.
firearm part has the same meaning as in the Customs (Prohibited Imports) Regulations 1956.
import a thing, means import the thing into Australia, and includes deal with the thing in connection with its importation.
traffic in a thing that is a firearm or a firearm part means:
(a) transfer the thing; or
(b) offer the thing for sale; or
(c) invite the making of offers to buy the thing; or
(d) prepare the thing for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the thing with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the thing with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the thing with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a thing for transfer includes packaging the thing or separating the thing into discrete units.
361.2 Trafficking prohibited firearms or firearm parts into Australia
Basic offence
(1) A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the person imports the firearm or part with the intention of trafficking in the firearm or part; and
(d) importing the firearm or part was prohibited under the Customs Act 1901:
(i) absolutely; or
(ii) unless certain requirements were met; and
(e) if subparagraph (d)(ii) applies—the person fails to meet any of those requirements.
Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.
Aggravated offence—importing 50 or more prohibited firearms or firearm parts in 6 month period
(2) A person commits an offence if:
(a) the person imports (on one or more occasions) one or more things; and
(b) the thing is, or the things include, a firearm or firearm part; and
(c) the person imports each firearm or part with the intention of trafficking in the firearm or part; and
(d) importing each firearm or part was prohibited under the Customs Act 1901:
(i) absolutely; or
(ii) unless certain requirements were met; and
(e) if subparagraph (d)(ii) applies in relation to an occasion of importation—the person fails to meet any of those requirements; and
(f) any occasion of importation, or 2 or more occasions taken together, results in the importation by the person of:
(i) 50 or more firearms; or
(ii) 50 or more firearm parts; or
(iii) a combination of firearms and firearm parts such that the sum of the firearms and the firearm parts is 50 or more; and
(g) if the importation of the firearms or parts mentioned in paragraph (f) resulted from 2 or more occasions of importation taken together—the occasions of importation occurred during a 6 month period.
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.
Provisions relating to basic offence and aggravated offence
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d) and (g).
Note: For absolute liability, see section 6.2.
(4) Strict liability applies to paragraphs (1)(e) and (2)(e) and (f).
Note: For strict liability, see section 6.1.
(5) To avoid doubt, it is immaterial for the purposes of paragraphs (2)(b) and (f) whether the firearms or firearm parts are of the same kind.
361.3 Trafficking prohibited firearms or firearm parts out of Australia
Basic offence
(1) A person commits an offence if:
(a) the person exports a thing, or enters a thing for export from Australia; and
(b) the thing is a firearm or firearm part; and
(c) the person exports, or enters for export, the firearm or part with the intention of trafficking in the firearm or part; and
(d) exporting, or entering for export, the firearm or part was prohibited under the Customs Act 1901:
(i) absolutely; or
(ii) unless certain requirements were met; and
(e) if subparagraph (d)(ii) applies—the person fails to meet any of those requirements.
Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.
Aggravated offence—exporting or entering for export 50 or more prohibited firearms or firearm parts in 6 month period
(2) A person commits an offence if:
(a) the person (on one or more occasions) exports, or enters for export from Australia, one or more things; and
(b) the thing is, or the things include, a firearm or firearm part; and
(c) the person exports, or enters for export, each firearm or part with the intention of trafficking in the firearm or part; and
(d) exporting, or entering for export, each firearm or part was prohibited under the Customs Act 1901:
(i) absolutely; or
(ii) unless certain requirements were met; and
(e) if subparagraph (d)(ii) applies in relation to an occasion of exportation or entry for export—the person fails to meet any of those requirements; and
(f) any occasion of exportation or entry for export, or 2 or more occasions taken together, results in the exportation or entry for export by the person of:
(i) 50 or more firearms; or
(ii) 50 or more firearm parts; or
(iii) a combination of firearms and firearm parts such that the sum of the firearms and the firearm parts is 50 or more; and
(g) if the exportation or entry for export of the firearms or parts mentioned in paragraph (f) resulted from 2 or more occasions of exportation or entry for export taken together—the occasions of exportation or entry occurred during a 6 month period.
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.
Provisions relating to basic offence and aggravated offence
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d) and (g).
Note: For absolute liability, see section 6.2.
(4) Strict liability applies to paragraphs (1)(e) and (2)(e) and (f).
Note: For strict liability, see section 6.1.
(5) To avoid doubt, it is immaterial for the purposes of paragraphs (2)(b) and (f) whether the firearms or firearm parts are of the same kind.
361.4 Defence—reasonable belief that conduct is justified or excused by or under a law
A person is not criminally responsible for an offence against this Division if:
(a) at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and
(b) had the conduct been so justified or excused—the conduct would not have constituted the offence.
Note: A defendant bears an evidential burden in relation to the matter in paragraph (a) (see subsection 13.3(3)).
361.5 Minimum penalties
(1) Subject to subsections (2) and (3), the court must impose a sentence of imprisonment of at least 5 years for a person convicted of an offence against this Division.
People aged under 18
(2) Subsection (1) does not apply to a person who was aged under 18 years when the offence was committed.
Reduction of minimum penalty
(3) A court may impose a sentence of imprisonment of less than the period specified in subsection (1) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a) the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act 1914, the person pleading guilty;
(b) the court is taking into account, under paragraph 16A(2)(h) of that Act, the person having cooperated with law enforcement agencies in the investigation of the offence.
(4) If a court may reduce a sentence, the court may reduce the sentence as follows:
(a) if the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act 1914, the person pleading guilty—by an amount that is up to 25% of the period specified in subsection (1);
(b) if the court is taking into account, under paragraph 16A(2)(h) of that Act, the person having cooperated with law enforcement agencies in the investigation of the offence—by an amount that is up to 25% of the period specified in subsection (1);
(c) if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in subsection (1).
361.6 Double jeopardy and alternative verdicts
Double jeopardy
(1) A person punished for an offence against this Division in respect of particular conduct cannot be punished for an offence against section 233BAB of the Customs Act 1901 in respect of that conduct.
Note: A similar provision for the opposite case is set out in subsection 233BAB(7) of the Customs Act 1901.
(2) A person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to the aggravated offence that is alleged to have been committed in the period during which the person was alleged to have committed the aggravated offence.
(3) However, subsection (2) does not prevent an alternative verdict under subsection (5).
(4) A person who has been convicted or acquitted of a basic offence relating to an aggravated offence may not be convicted of the aggravated offence if any of the occasions relied on as evidence of the commission of the aggravated offence includes the conduct that constituted the basic offence.
Alternative verdict—aggravated offence not proven
(5) If, on a trial for an aggravated offence, the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of the basic offence relating to the aggravated offence;
it may find the defendant not guilty of the aggravated offence but guilty of the basic offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Definitions
(6) In this section:
aggravated offence means an offence against subsection 361.2(2) or 361.3(2).
basic offence relating to an aggravated offence means:
(a) if the aggravated offence is an offence against subsection 361.2(2)—an offence against subsection 361.2(1); or
(b) if the aggravated offence is an offence against subsection 361.3(2)—an offence against subsection 361.3(1).
Part 9.5—Identity crime
Division 370—Preliminary
370.1 Definitions
In this Code:
deal, in identification information, includes make, supply or use any such information.
identification documentation means any document or other thing that:
(a) contains or incorporates identification information; and
(b) is capable of being used by a person for the purpose of pretending to be, or passing the person off as, another person (whether living, dead, real or fictitious).
identification information means information, or a document, relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person, including any of the following:
(a) a name or address;
(b) a date or place of birth, whether the person is married or has a de facto partner, relatives’ identity or similar information;
(c) a driver’s licence or driver’s licence number;
(d) a passport or passport number;
(e) biometric data;
(f) a voice print;
(g) a credit or debit card, its number, or data stored or encrypted on it;
(h) a financial account number, user name or password;
(i) a digital signature;
(j) a series of numbers or letters (or both) intended for use as a means of personal identification;
(k) an ABN.
370.2 Definition of foreign indictable offence
In Division 372:
foreign indictable offence means an offence against a law of a foreign country or part of a foreign country that is constituted by conduct that, if engaged in in Australia, would constitute an indictable offence against a law of the Commonwealth.
370.3 Concurrent operation intended
(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this Part; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Part;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.
Division 372—Identity fraud offences
372.1 Dealing in identification information
(1) A person (the first person) commits an offence if:
(a) the first person deals in identification information; and
(b) the first person intends that any person (the user) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(c) the offence referred to in paragraph (b) is:
(i) an indictable offence against a law of the Commonwealth; or
(ii) a foreign indictable offence.
Penalty: Imprisonment for 5 years.
Note: Deal, in identification information, includes make, supply or use any such information. See section 370.1.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
Note: For absolute liability, see section 6.2.
(3) This section applies:
(a) even if:
(i) committing the offence referred to in paragraph (1)(b) is impossible; or
(ii) the offence referred to in paragraph (1)(b) is to be committed at a later time; and
(b) whether or not the person to whom the identification information concerned relates consented to the dealing in the identification information.
(4) This section does not apply to dealing in the first person’s own identification information.
372.1A Dealing in identification information that involves use of a carriage service
Dealing in identification information using a carriage service
(1) A person (the first person) commits an offence if:
(a) the first person deals in identification information; and
(b) the first person does so using a carriage service; and
(c) the first person intends that any person (the user) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of: