Under the Controlled Substances Act 1984 (SA), some (not all) offences have two types - a basic offence and an aggravated offence. Of these two types, the aggravated offence will have a higher maximum penalty.
An aggravated offence is an offence where:
- the offender committed the offence for the benefit of a criminal organisation (see below), or two or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or
- in the course of, or in connection with, the offence, the offender identified themselves in some way as belonging to, or being associated with, a criminal organisation (even if the offender did not actually belong to or was not actually associated with a criminal organisation.[Controlled Substances Act 1984 (SA) s 43]
The ways in which a person may identify themselves as belonging to, or being associated with, a criminal organisation are not limited. One example is that a person will be taken to have identified themselves as belonging to or 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 they did not display the insignia knowingly or recklessly [s 43(2)].
What is a criminal organisation?
There are three definitions of a criminal organisation [Part 3B Criminal Law Consolidation Act 1935 (SA)].
- A criminal organisation is a 'criminal group', that is, a group consisting of 2 or more persons where an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence.A 'serious offence of violence' involves:(a) the death of or serious harm to a person, or a risk of the death of or serious harm to, a person; or(b) serious damage to property in circumstances involving a risk of the death of or harm to a person; or(c) perverting the course of justice in relation to any of the above conduct.
- A criminal organisation is a criminal group, that is, a group consisting of 2 or more persons where an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence intended to benefit the group, persons who participate in the group or their associates.A serious offence is an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.
- An organisation can be declared to be a criminal organisation under the Serious and Organised Crime (Control) Act 2008 (SA).
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