Serious Crime Prevention Order
A Serious Crime Prevention Order is an order made by the Supreme or District court against a person to prevent, restrict or disrupt their involvement in serious crime or terrorism offences. The order can last for up to 5 years and can contain conditions such as a ban on being in specific locations or associating with specific people, and a curfew. An order can be made under the Crimes (Serious Crime Prevention Orders) Act 2016.
A court can make a Serious Crime Prevention Order against a person if the person is aged at least 18 and the court is satisfied:
- the person has been convicted of a serious criminal offence;
- the person has been involved in serious crime related activity for which they have not been convicted;
- there are reasonable grounds to believe the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
A “serious criminal offence” includes drug trafficking, money laundering, extortion, bribery, perverting the course of justice, illegal gambling, homicide, participation in criminal groups, sexual slavery and unauthorised supply of firearms.
“Serious crime related activity” means a serious criminal offence whether or not:
- the person has been charged; or
- if charged, the person has been:
- tried; or
- tried and acquitted; or
- convicted (even if the conviction has been quashed or set aside).
A person is involved in serious crime related activity if they have engaged in it, engaged in conduct that has facilitated another person to engage in it, or engaged in conduct likely to facilitate it.
The court is permitted to take into account hearsay evidence (evidence from a witness about what they heard another person say about facts), which is usually prohibited.
The Act allows a court a broad discretion as to the conditions it can include in an order. It states the order can “contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities”.
The conditions can include restrictions on a person’s financial, property or business dealings or holdings; employment; methods of communication; travel; access to premises; and use of certain items.
However a person subject cannot be made to answer questions or provide information orally, or provide information that is subject to legal professional privilege, held in confidence or otherwise protected.
Appealing an order
A person can appeal an order on a question of law within 28 days of the making of the order but must apply for leave (permission) from the court to appeal on a question of fact. The Court of Appeal can confirm, vary or reverse the decision, or make any consequential or ancillary order.
Contravening an order
If a person subject to an order contravenes it, they face a maximum penalty of a fine of 300 penalty units ($33,000) or imprisonment for 5 years or both. In the case of company or association, the maximum penalty is a fine of 1500 penalty units ($165,000).
If a company or association is convicted of contravening the order, the Police Commissioner, Director of Public Prosecutions or the NSW Crime Commission can apply to the Supreme Court for a “compulsory winding up order” of the company or association. The court can grant the order is it is satisfied there are no further avenues available for the company or association to appeal the conviction and it is in the public interest, and just and equitable, for the company or association to be wound up. Those three agencies can also apply for a “compulsory dissolution order” to force a partnership to be dissolved if the partnership has, or one or more of the partners have, been convicted of contravening the order.
The order in practice
Since the Serious Crime Prevention Order was introduced in 2016, it has been applied to people involved in gang violence.
A Serious Crime Prevention Order was imposed on Ghassan Amoun in December 2020. Amoun is the brother of Bassam Hamzy, founder of the Brothers 4 Life gang, who is serving a 40-year jail sentence for murder. Four members of the Hamzy family are subject to Serious Crime Prevention Orders. The orders were imposed in response to escalating tensions between the Hamzy and Alemaddine crime families in Sydney. Amoun and Hamzy’s brother Mejid Hamzy was shot dead outside his home in October 2020.
In February 2021, Amoun was arrested over alleged breaches of his order, including being in possession of three undeclared phones and a laptop, and having Queensland registration plates on his vehicle, unbeknownst to police. The phones had encrypted messaging apps on them and were registered to fraudulent identities. He is due to appear in October 2021 to answer the charges.
In June 2021, Amoun was granted permission by the Supreme Court to attend the funeral of his cousin who was murdered in an execution-style shooting in Sydney’s CBD that month, despite a court being told he could be the “next target” in the gangland war.
Rebel motorcycle gang
In 2019, Serious Crime Prevention Orders were imposed on alleged Rebel motorcycle gang members Damien Charles Vella, Johnny Lee Vella and Michael Fetui. The orders were in force for 2 years and included conditions that restricted the men from associating with any motorcycle gang members, travelling in a vehicle between 9pm and 6am (except in an emergency) and possessing more than 1 mobile phone. All three men had convictions for serious criminal offences, as well as acquittals and withdrawn charges. They challenged the validity of the Act in the High Court, and the High Court ruled the Act was not invalid.
For advice or representation in any legal matter, please contact Armstrong Legal.