This article was written by Andrew Fraser - Managing Associate - Canberra
Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...
Recruiting People To Engage In Criminal Activity
Recruiting people to engage in criminal activity is a rarely charged offence in the ACT, despite the definition of recruiting being very broad and the maximum penalties involving significant periods of imprisonment. The maximum penalty for recruiting is seven years’ imprisonment. The maximum penalty is 10 years if the person recruited is a child.
What Is The Definition of Recruiting?
Recruiting can be constituted by counselling, procuring, soliciting, inciting or inducing someone to carry out, or assist in carrying out, criminal activity. None of the alternative terms mentioned are defined in the Criminal Code 2002, and as such, they have their ordinary meaning.
While their meanings are not spelt out, “counselling” and “procuring” are specifically referred to in a separate section of the Code, which deals with complicity and common purpose. While specifically referred to, along with aid and abet, they are still not separately defined and will carry their ordinary meaning. It is arguable that few people are charged with recruiting because they are instead charged with common purpose.
The Offence Of Recruiting People to Engage in Criminal Activity
Section 655(1) of the Code states that a person commits the offence of recruiting if the person recruits someone else to carry out, or assist in carrying out, a criminal activity. “Criminal activity” is defined by Section 650 of the Code as being conduct that constitutes an indictable offence. An indictable offence is one that is punishable by a maximum penalty of imprisonment for longer than 2 years, or is declared by an ACT law to be an indictable offence.
The offence of recruiting is located in an area of the Code – Part 6A – which deals also with criminal groups. This is an area in which various legislatures have been active in recent years in efforts to curb the activities of outlaw motorcycle gangs, among others.
Aggravated Offence
Section 655(2) makes provisions for an aggravated offence and states that a person commits an offence if:
- the person recruits a child to carry out, or assist in carrying out a criminal activity.
What actions might constitute recruiting someone to engage in criminal activity?
- A person seeking to convince a friend to help them load stolen property on to a truck.
- Someone trying to persuade a work colleague to join a club or organisation that might be considered a criminal group (i.e. a bikie gang).
- For the aggravated offence: an adult offering to pay someone to keep a lookout while the adult breaks into a home.
What the police must prove
In order to convict a person of this offence, the police must prove beyond reasonable doubt that the person charged:
- recruited someone; and, either
- that the recruiting was for the purpose of carrying out criminal activity, or
- that it assisted the carrying out of criminal activity.
Possible defences
It may be possible to defend the charge by:
- maintaining innocence if you were not the person involved in the alleged offence;
- arguing that your actions did not amount to “recruiting”;
- arguing that no criminal activity was carried out, or assisted;
- in relation to the aggravated offence, arguing that the person recruited was not a child;
- arguing that the accused acted under duress.
Which court will hear the matter?
There are various factors to be considered about which Court you might choose for your matter to be determined, if contested, or sentenced, if pleading guilty.
For advice or representation in any legal matter, please contact Armstrong Legal.