Control Orders (Qld)
A control order is a court order to prevent, restrict or disrupt a person’s involvement in serious crime. It can be made when a person who participated in a criminal organisation is being sentenced for particular offences. The order can impose conditions that restrict the person’s movement, association, employment or other activity, and can last for up to 5 years. Control orders are governed by the Penalties and Sentences Act 1992 and were introduced in 2016 in a bid to tackle serious and organised crime, especially such crime involving outlaw motorcycle gangs.
Control order conditions
The court has discretion as to the types of conditions it can impose under a control order. Conditions can include restrictions or prohibitions related to:
- associating with other members of the criminal organisation;
- possessing weapons;
- going to a certain place or type of place;
- methods of communicating with others;
- licensing to work in certain industries including tattooing, motor dealing, security and second-hand dealing.
Mandatory or discretionary control orders
Under the Act, a control order must be made for a person convicted of a crime that has a serious organised crime circumstance of aggravation. A serious organised crime circumstance of aggravation is when during committing the offence, the person:
- was a participant in a criminal organisation; or
- knew or ought reasonably to have known that the offence was being committed:
- under the order of a criminal organisation or a participant in it; or
- in association with participants in a criminal organisation; or
- for the benefit of a criminal organisation.
A court has discretion to impose a control order on a person if they:
- have been convicted of a serious offence and they were a participant in a criminal organisation at the time;
- have been convicted of habitual consorting;
- have contravened a previous control order.
A criminal organisation is a formal or informal group of 3 or more people who engage in or have as their purpose serious criminal activity, and “who, by their association, represent an unacceptable risk to the safety, welfare or order of the community”. It does not matter whether the group has a name, is recognised by the public as a group, or exists legally or as a group beyond its criminal activity. It also does not matter if group members have different roles, interests and benefits in the criminal activity, or if membership changes over time.
To “engage” in serious criminal activity includes to organise, plan, facilitate, support or otherwise conspire in it, or to obtain a material benefit, directly or indirectly, from it.
A person participates in a criminal organisation if they are an accepted, honorary, prospective or perceived member; a person who identifies themselves as a member; an office-holder; or someone whose behaviour would reasonably lead someone else to consider them a member.
When a person is subject to a control order, it is an offence for them to recruit or try to recruit another person to join a criminal organisation.
A control order of up to 2 years can be issued if a person is convicted of habitually consorting.
A person is considered to be habitually consorting when they continue to associate or communicate with someone who has been convicted of certain offence (a “recognised offender”) after receiving an official police warning. A “recognised offender” is an adult who has a conviction for an offence that carries a maximum penalty of at least 5 years imprisonment, or another serious offence that involves, for example, prostitution, weapons or terrorism.
“Consorts” means to associate in a way that involves seeking out or accepting that person’s company The association can be in person or otherwise, and does not need to be for the purpose of criminal activity.
“Habitually consorts” means to seek out or accept person’s company on at least 2 occasions, with at least 2 recognised offenders (together or separately).
If a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort, the officer can stop that person, require them to provide their identifying details, search them or their vehicle without a warrant, and give them a “move on” direction after issuing a warning.
The maximum penalty for habitual consorting is 300 penalty units ($41,355) or 3 years imprisonment. A person may have a defence if the association is reasonable in the circumstances, such as consorting with close family members or consorting during working or studying.
Breach of a control order
A person can be jailed for up to 3 years for a first breach of a control order, and up to 5 years for a repeat breach. A new control order can be made or an existing order extended. It is a defence if the person can prove they had a reasonable excuse for breaching the order.
For advice or representation in any legal matter, please contact Armstrong Legal.