Money Laundering

Money laundering is the practice which involves making money from one source appear to come from another source, on purpose. This activity is illegal because in most cases, it is carried out to hide cash obtained from illegal activities. It is commonly used to disguise original ownership and control of the money obtained through illegal activity and make the source of the money appear to be legitimate.

There are stringent laws against money laundering in most countries worldwide, including Australia. Money laundering laws in Australia are tough and designed to discourage the illegal activity. These laws are either State or Commonwealth crimes.

The state offence of money laundering is seen in section 193B of the Crimes Act 1900 (NSW) which confirms that:

  1. A person who deals with the proceeds of crime:
    1. Knowing that it proceeds to crime, and
    2. Intending to conceal that it is proceeds of crime,

    Is guilty of an offence.

  1. A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.
  2. A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.
  3. It is a defence to a prosecution for an offence under this section if the defendant satisfies the Court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory.

Meanwhile, the more complex federal offence of money laundering is seen in 10.2 of the Criminal Codes Act 1995, which states that:

  • Dealing in proceeds of crime – money or property worth $1,000,000 or more.
  1. A person commits an offence if:
    1. The person deals with money or other property; and
    2. Either
      1. The money or property is, and the person believes it to be, proceeds of crime
      2. The person intends that the money or property will become an instrument of crime
  2. A person commits an offence if:
    1. The person deals with money or other property; and
    2. Either:
      1. The money or property is proceeds of crime; or
      2. There is a risk that the money or property will become an instrument of crime; and;
    3. The person is reckless as the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires);
  3. A person commits an offence if:
    1. The person deals with money or other property; and
    2. Either;
      1. the money or property is proceeds of crime; or
      2. there is a risk that the money or property will become an instrument of crime; and
    3. the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires)

Evidently, under both the State and Commonwealth law, money laundering charges are complex. A gradation exists in the serious of the offence. The Court must first and foremost establish how much money is involved in the offence. In addition, the Court must also establish the level of knowledge that the person had of the illegally obtained money and whether it was intentional, reckless or negligent.

Generally speaking, the higher the monetary value and the more knowledge or involvement that an individual had in the crime, the more significant penalty that will be incurred. That means one can be charge with the less serious money laundering offence, if they have found to be negligent or did not give enough attention to the fact that they were involved in proceeds of crime.

PENALTIES

First and foremost, individuals who have been charged with money laundering will immediately be subject to seizure orders that the Crimes Commission obtains from the Supreme Court. These seizure orders restrain the sale or disposal of the defendant’s property and could include assets such as cars, houses, jewellery and shares, among others. Orders can also be made for the forfeiture of property that was obtained. It is then up to accused to submit information regarding their financial affairs.

Once individuals have been found guilty of money laundering, maximum penalties for the offence vary significantly, depending on whether you’ve been charged with a Commonwealth or State offence, the value of the property and level of knowledge in the act. The maximum penalties for the offence of money laundering are as follows:

 

JurisdictionLevel of KnowledgeValueMaximum Penalty
StateKnew it was proceeds of crime, and intended to concealN/A20 years imprisonment
StateKnew it was proceeds of crimeN/A15 years imprisonment
StateReckless as to whether it is proceeds of crimeN/A10 years imprisonment
FederalIntentional$1,000,000 or more25 years and/or 1,500 penalty units
FederalReckless$1,000,000 or more12 years and/or 720 penalty units
FederalNegligent$1,000,000 or more5 years and/or 300 penalty units
FederalIntentional$100,000 or more20 years and/or 1,200 penalty units
FederalReckless$100,000 or more10 years and/or 600 penalty units
FederalNegligent$100,000 or more4 years and/or 240 penalty units
FederalIntentional$50,000 or more15 years and/or 900 penalty units
FederalReckless$50,000 or more7 years and/or 420 penalty units
FederalNegligent$50,000 or more3 years and/or 180 penalty units
FederalIntentional$10,000 or more10 years and/or 600 penalty units
FederalReckless$10,000 or more5 years and/or 300 penalty units
FederalNegligent$10,000 or more2 years and/or 120 penalty units
FederalIntentional$1,000 or more5 years and/or 300 penalty units
FederalReckless$1,000 or more2 years and/or 120 penalty units
FederalNegligent$1,000 or more12 months and/or 60 penalty units
FederalIntentionalUnder $1,00012 months and/or 60 penalty units
FederalRecklessUnder $1,0006 months and/or 30 penalty units
FederalNegligentUnder $1,00010 penalty units

These penalties can also be accompanied by the freezing and seizure of assets on an interim basis, and forfeiture of assets on a final basis.

GUILTY

In order to be found guilty of money laundering, the prosecution will need to establish beyond a reasonable doubt that you were dealing with the proceeds of crime. They will also need to establish the level of knowledge you had in relation to the proceeds and the monetary value of the property. If the prosecution is able to successfully prove these facts beyond a reasonable doubt, it is likely that you will face any of the above penalties imposed by the Court.

If you tend to agree with these claims, you have the option to plead guilty, whereby the case will proceed to sentencing where one of the above penalties will be enforced. However, pleading guilty is often demonstrates remorse, and could result in the enforcement of less severe penalties. Our criminal defence lawyers may also be able to organise a deal with the prosecution in turn for a guilty plea. Our Sydney based fraud lawyers can best advise you on whether it is in your best interest to plead guilty and the penalties associated if you decide to do so.

Contact our Sydney criminal defence law firm now for a FREE first consultation.

NOT GUILTY

Alternatively, if you are facing the charge of money laundering, you have the option to plead not guilty. If you choose to do so, the prosecution will need to prove beyond reasonable doubt that you are guilty of the allegations made against you as set out by section 193B of the Crimes Act 1900 or Part 10.2 in the Criminal Code 1995. If the prosecution can successfully prove this beyond reasonable doubt, it is likely you will have one of the above penalties imposed on you.

In order to prove the claims beyond a reasonable doubt, the prosecution will present evidence before the Court. Our criminal defence lawyers will thoroughly cross examine the evidence provided in order to cast doubt over the prosecutions claims. We will also apply the appropriate legal defences in order to negate the allegations against you. If these activities are able to successfully raise doubt in relation to the evidence provided, you will not be found guilty of the charge.

It is important to understand that some defence strategies may not provide a complete defence, in which you could be found guilty of an alternative or lesser crime, however, this generally attracts more successful outcomes in comparison to the maximum penalty.

THE DEFENCE

If you or someone you know is facing fraud charges relating to money laundering, our expert criminal defence lawyers may argue the follow criminal defences:

Duress: Arises in situations where unlawful coercion has been used to persuade the accused to the criminal activity and would not usually be something they would do if the threats had not been present.

Lack of Knowledge: It can potentially be argued that the defendant had no knowledge in relation to the proceed of crime. While this may not provide a complete defence, as the defendant may be found negligent, the penalties incurred are significantly reduced.

WHICH COURT?

Depending on the severity of the offence, money laundering may be dealt with in the Local Court, District Court or Supreme Court.