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The offences operate on a sliding scale of seriousness.
The first consideration is how much money is involved in the offence. The offences range from less than $1,000 to amounts in excess of $1m and the penalties increase significantly as the amount increases.
The second consideration is what level of knowledge the Crown is able to prove that the individual had with regard to the illegally obtained money. The offences are broken down into three levels of knowledge; negligence, recklessness and intention.
What it means to be negligent or reckless with regard to these offences is defined by the Criminal Code.
The table below demonstrates the potential maximum penalties for each type of money-laundering offence.
|Section of the Criminal Code||400.3||400.4||400.5||400.6||400.7||400.8|
|Value of money/property||$1million or more||$100,000 or more||$50,000 or more||$10,000 or more||$1000 or more||Any value|
|Penalty||Ss (1) Intention||25 years and/or 1500 p/units||20 years and/or 1200 p/units||15 years and/or 900 p/units||10 years and/or 600 p/units||5 years and/or 300 p/units||12 months and/or 60 p/units|
|Ss (2) Reckless||12 years and/or 720 p/units||10 years and/or 600 p/units||7 years and/or 420 p/units||5 years and/or 300 p/units||2 years and/or 120 p/units||6 months and/or 30 p/units|
|Ss(3) Negligent||5 years and/or 300 p/units||4 years and/or 240 p/units||3 years and/or 180 p/units||2 years and/or 120 p/units||12 months and/or 60 p/units>||10 p/units|
A defendant is able to defend charges of money-laundering if they are able to show that they had no reasonable grounds of knowing that the property/money was the proceeds of crime.
If the court is unable to find the defendant guilty of a more serious type of money laundering offence, they may still be able to find the defendant guilty of one of the lesser offences. This may occur for example when they cannot be sure exactly what the value of the property concerned is.
Matters of this type are complex and may involve significant negotiations with the Commonwealth Director of Public Prosecutions as to the appropriate charge.
Aside from the offence which enabled the money to be obtained in the first place, there are often similar or related offences which are charged alongside money-laundering offences. The Financial Transactions Reporting Act 1988 (Cth) and more recent Anti-Money Laundering and Counter-Terrorism Financing Act 2006 contain provisions which prohibit the transfer of amounts of money in excess of $10,000 into or out of Australia without the filing of the appropriate report and offences for any attempts to hide such transactions. Offences of this type can carry up to five years imprisonment.
Upon conviction for a money-laundering offence, the Crown can make an application to have the property or money seized by the Commonwealth. There is a limited opportunity to resist applications made by the Crown for the forfeiture of the property/money depending upon any hardship that may be suffered, the use to which the money was to be put and the nature of the offence.
Armstrong Legal has a number of solicitors with specific expertise in this complex area of criminal law. You need a solicitor who understands how these offences operate and how best to work with the prosecuting agencies to ensure the best possible outcome for you.
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in corporate crime and will be able to guide you through the process while dealing with the various authorities related to your matter.