Criminal Law

Investigative Tools do Queensland Police Utilise

There are many ways a police force investigate criminal offences. From basic questioning of suspects to surveillance operations, telephone intercepts, digital tracking, profiling and many other techniques, the tools of police investigation are many and varied.

How police go about an investigation is highly important. The evidence collected in an investigation will form the basis of a prosecution case against an offender and, therefore, must meet all the criteria for admissibility in a trial.

If evidence is collected in an improper or unethical manner, a person charged with an offence may have grounds for an appeal if convicted.

In Queensland, the way police conduct an investigation is governed by the Police Powers and Responsibilities Act (‘the Act’).

This Act proscribes what police can and cannot do when using some of the investigative tools discussed in this post, ensuring that the rights of a person suspected of, or charged with, an offence are protected.

This includes limits on the periods a person can be questioned and detained as part of an investigation.

How are police investigative tools used?

The police investigative process commences at the time an incident comes to the attention of police and concludes when the prosecution proceedings are finalised.

The approach taken by police to an investigation will generally depend on the nature of the offence being investigated.

Sexual assaults, for example, call for significantly different methods than investigation of a break-and-enter.

An investigation into sexual assault or many other person-to-person crimes will usually involve questioning of the suspect, the victim and others who may provide evidence leading towards charging someone with a crime.

An interview in these matters can be a confronting experience, involving the asking of personal questions about a person’s sexual activity, alcohol, drug usage and much more. The information gained is likely to then be used in connection with forensic evidence from the scene.

Generally a police investigation into an assault, for example, will also:

• identify places of interest to the investigation, including where the assault occurred;
• collect evidence and take photographs;
• undertake door knocks of neighbours in an attempt to identify additional witnesses;
• seek CCTV footage, computers or mobile telephones;
• collect and preserve other evidence such as clothing, bedding and other household objects for further examination;
• ask a person to undergo a forensic examination.

Collection and testing of physical evidence and DNA is particularly crucial in homicide, robbery and sexual assault cases.

An investigation will likely engage experts in these fields, including fingerprint analysis, electronic forensics and other fields of expertise, in order to build a case that will be admissible in court.

Again, its important to know your rights in a situation where you are questioned or asked to hand over personal items as part of a police investigation.

Surveillance of phones and apps

Sophisticated surveillance of people’s use of mobile phones and certain mobile apps is an increasingly popular police investigative tool. This extends to police gaining access to messages supposedly protected by encryption technology.

The recent high-profile prosecution of former Olympic kayak champion Nathan Baggaley involved police gaining access to encrypted messages sent through the Threema app, while Operation Ironside, the recent police sting which infiltrated a global drug operation, was achieved through a ‘Trojan’ phone app.

How do I know My Phone is Tapped?

Queensland Police must apply for a warrant to ‘tap’ phones and intercept messages under the relevant legislation. Telecommunication interception is most generally used to investigate serious criminal offences including murder, kidnapping, serious drug offences, terrorism and corruption.

The Queensland laws on phone tapping include a Public Interest Monitor (PIM) and oversight by an independent barrister to oversee the powers to ensure they are not abused or exploited.

Why immediate legal advice is crucial

If you or someone you know becomes the subject of a criminal investigation by police, or even if you are interviewed as a witness or someone with knowledge of the matters being investigated, you should seek advice from experienced criminal lawyers as soon as possible.

The relative positions of police and a suspect in an investigation are unequal, but that doesn’t mean the suspect has no rights. Police have procedures and obligations they must observe under the legislation to ensure an investigation is conducted ethically and correctly.

If you believe you may be the subject of investigation by police – you may have noticed phone calls dropping out or other things out of the ordinary – contact Hannay Criminal Defence today for a free appraisal of your situation.

We are experienced, award-winning criminal lawyers in Brisbane south-east Queensland who will ensure that any police investigation which you are the subject of was conducted the right way, in order to protect your rights.

At the outset, we should distinguish a committal from a mention or a trial.

A committal is an important stage of the criminal law process that takes place once someone has been charged with a serious indictable offence.

Committal proceedings determine whether a person’s case should be heard in a higher Queensland court such as the District or Supreme Court, where serious indictable offences such as murder, manslaughter, drug trafficking and sexual assault (as some examples) are heard.

One way to think of the process is as a filter between the Magistrates Court, where most matters are first heard, and the higher courts, determining which cases should proceed to the latter.

Below is more detail on how committal proceedings work. If you have questions or concerns about this process, contact award-winning Queensland criminal law firm Hannay Criminal Defence today.

What kinds of committal proceedings are there?

Committal hearings do not involve the judge making a finding of guilt or innocence. Instead, the evidence against a person is assessed to determine whether the case should proceed to a higher court.

Cross-examination: The first type of proceeding is a committal hearing, which generally occurs where the person charged wishes to plead ‘not guilty’ to the offence.

Here a magistrate will hear evidence, including from witnesses for the prosecution under cross-examination, in order to determine whether there is enough evidence for a jury in a higher court to decide the offence was committed beyond a reasonable doubt – the criminal standard of proof.

Where a magistrate finds the evidence supports committing the matter to a higher court, the accused’s defence lawyer may present evidence and call witnesses to answer the prosecution’s case, though this is generally considered a strategic error as it provides the prosecution with insight into how the charges would be defended in a trial.

Alternatively, the magistrate may dismiss the case if the evidence would not support a finding of guilt beyond reasonable doubt.

Full hand up committals: Another committal proceeding is known as a ‘full hand up’ committal. In this form, the magistrate receives a brief of evidence from the prosecution and after assessing it, makes a decision to commit the matter to the higher court.

This method often occurs where an accused is planning to plead guilty. No calling of witnesses or cross-examination occurs in a full hand up committal.

A person’s defence team may make a ‘no case to answer’ submission as part of a full hand up committal. This will ask the judge to dismiss the case based on the prosecution evidence not being strong enough to achieve a conviction.

This submission requires the criminal defence to provide written submissions and legal authorities upon which it will rely.

Registry committal: This method is an administrative means which avoids the need for a charged person to go to court. You definitely require a criminal defence lawyer in this situation to ensure all documents and witness statements constituting the evidence against you have been filed both with the prosecution and the court.

Your matter may then be transferred to a higher court by the court registrar or clerk, without an appearance in court being necessary.

Legal representation is crucial

An experienced criminal lawyer with expertise in committal proceedings is essential for anyone facing this experience.

While guilt is not established during this proceeding, the process is nonetheless an extremely important step in criminal law procedure, often establishing how a subsequent trial will be run.

Committal proceedings also establish the relative strengths and weaknesses of the prosecution and defence cases, helping the person facing criminal charges work out the best way to defend themselves.

Experienced south-east Queensland firm Hannay Criminal Defence has years of experience conducting committal proceedings for people facing serious charges.

Call us Gold Coast criminal lawyers today for a free initial consultation if you need advice on anything raised in this post.

The Queensland Parole Board is facing possible legal action from those held in custody as a result of significant delays in deciding parole applications.

In a statement released in May 2021, the Board offered a justification for delays in deciding parole applications stretching up to eight months.

‘There has been a significant increase in prisoner numbers, with approximately 1,000 more prisoners now held in custody compared to a year ago,’ the Board said.

The onset of the Covid-19 pandemic in 2020 had also increased the number of emergency parole applications.

‘The Board will continue to do everything that it can to decide parole applications as quickly as possible.’

‘Applications for a parole order received in May 2021 are not likely to be heard before January 2022.’

What are the implications of Parole Board delays?

There was a strong reaction to the statement, including from Queensland Supreme Court Justice Thomas Bradley, who said the Parole Board’s tardiness in making decisions on applications could almost be described as ‘delinquent’.

The Judge said that he ‘would like to see any member of the Board placed in custody for six or seven months beyond the date when the court suggested their (parole) eligibility should be considered and scrutinise their behaviour.’

The Parole Board has a statutory time limit of 150 days in which to decide a prisoner’s parole application but in March this year, it conceded that about 75% of approximately 2100 undecided parole applications were decided beyond that time frame.

Cases were decided as long as 250 days after the application and in one case, 300 days later.

The Queensland Law Society (QLS) subsequently wrote to the Queensland government to warn that the Board would face a ‘significant number’ of judicial reviews of its decisions because of the failure to meet its legal time frame.

‘The parole board does not have a defence to such applications, and may have to bear the costs of defending these actions and potentially the costs of a successful applicant,’ QLS president Elizabeth Shearer warned.

It was reported the Queensland Government had engaged accounting firm KMPG to undertake an urgent review of the Board’s operations.

Effect on sentencing

There is anecdotal evidence that judges have given certain offenders suspended sentences when they would prefer they were on parole because of the length of time currently taken to consider a parole application.

In other cases, those sent to prison for even minor breaches of their parole conditions are facing six months or more before their parole suspension is again considered.

The Prisoners Legal Service has also raised the undesirability of prisoners walking free at the end of their sentence having not been granted parole and immediately living back in the community unsupervised.

Parole application delay? Speak with Hannay Criminal Defence

For anyone eligible for parole but facing significantly lengthy delays in having an application heard, or who has committed a minor parole breach and needs the suspension evaluated quickly, speak with expert criminal law firm Hannay Criminal Defence immediately.

You may have a case for judicial review of any delayed decision on your parole caused by the Queensland Parole Boar’s current backlog.

We can advise you promptly on your rights when a delay affects the hearing of your parole application so call us Drink Driving Lawyers Brisbane today.

Most criminal matters and many civil ones are first heard in the Magistrates Court of Queensland.

Where a person is unhappy with the decision they receive in the Magistrates Court, there is the possibility of appeal to the District Court.

If you pled guilty in the Magistrates Court, the appeal can only be related to the sentence you received, not the hearing and conviction.

‘If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate,’ reads section 222(2)(c) of the Justices Act 1886.

If you pled not guilty and were then convicted and sentenced, it’s possible to appeal both against the conviction and the sentence.

A person may not appeal under this section against a conviction or order made in a summary way by a Magistrate under section 651 of the Criminal Code 1899.

How do you make a Section 222 appeal?

To start an appeal from the Magistrates Court, you must file a notice of appeal at the nearest District Court registry using Form 27 from the Queensland Courts site.

The notice must be filed within one month from the date of the decision that you wish to appeal.

It must also be in the approved form and state:

• the appeal grounds;
• the details required under section 222C;
• the name and address of the respondent.

Once an appeal is filed, either the Magistrates Court or the District Court may grant bail pending the appeal upon application, though this is generally reserved for exceptional circumstances.

Where the sentence is relatively short, and the whole or a substantial part of it would be served before the appeal is heard, bail may be granted.

In terms of a sentence, what is excessive? An example is where an immediate parole eligibility date is given on a sentence of 12 months but the convicted person spends eight months in prison as their application is processed.

How is the Section 222 appeal conducted?

An appeal will generally see the District Court rehear the evidence given in the Magistrates Court proceeding.

In some circumstances, the District Court may grant leave for a party to adduce fresh, additional or substituted evidence on the appeal under section 223 of the Justices Act.

The decision of the District Court is not final and the appellant may have a further right of appeal to the Court of Appeal.

Discuss your case with Hannay Criminal Defence

The risk in any appeal is that the higher court may increase the length of your sentence if the appeal is unsuccessful.

Specialist legal advice from experienced criminal law practitioners Hannay Criminal Defence is vital before you consider an appeal from a Magistrates Court.

Contact us Gold coast criminal lawyers today to discuss your circumstances.

Prisoners in Queensland who are released on parole serve out the remainder of the sentence in the community under a range of conditions.

Queensland Corrective Services supervise the observance of these conditions, breach of which may result in the conditions being changed, or parole being suspended or cancelled and the parolee returned to prison.

This post will concentrate on the process of applying for parole. If you are serving a sentence and need prompt advice on how best to present your case, speak to criminal lawyers with years of proven experience in advocacy on parole matters, Hannay Criminal Defence.

What is the parole application process?

There are two types of parole in Queensland – court-ordered parole order and parole ordered by the Parole Board of Queensland.

A court-ordered parole order sets a fixed date for release to parole, determined at the time of sentence by the sentencing court.

A board-ordered parole order applies to those prisoners who are given a parole eligibility date when they are imprisoned. The Parole Board Queensland then determines if and when the prisoner is released on parole once that date is reached.

The difference as to whether an offender receives a set release date or an eligibility date from the court depends upon the type of offence and the length of the term of imprisonment imposed.

The granting of parole by the Parole Board of Queensland is made in line with legislation, common law principles and guidelines issued by the Minister for Police and Corrective Services.

If the court doesn’t provide a parole eligibility date, a prisoner may apply to the Parole Board after serving half of their sentence unless they are serving a life or indefinite sentence, or have been the subject of a ‘serious violent offence declaration’.

Those convicted of a serious violent offence may only apply for parole once they’ve served 80 per cent of their sentence, or 15 years in prison (whichever is less) unless a later parole eligibility date was set by the court.

Those sentenced to life must serve 15 years in prison before being eligible to apply for parole.

After receiving a parole application, the Parole Board must decide the application within 150 days (if it requires more information) or otherwise, 120 days.

There is also the facility to apply to the board in exceptional circumstances such as illness or certain compassionate grounds.

What factors are considered in assessing a parole application?

Some – but not all – of the factors the Parole Board takes into consideration include:

• the prisoner’s criminal history and pattern of offending;
• whether there are factors that increase the risk the prisoner presents to the community;
• whether the prisoner has been convicted of a serious sexual offence or serious violent offence;
• the remarks of the sentencing judge and whether any parole recommendation was made;
• expert medical, psychological or psychiatric risk assessment reports relating to the prisoner; and
• the prisoner’s behaviour while imprisoned.

The Board also considers what the prisoner will face once released into community. What support and other services will they have access to? Where will they live? Has the prisoner undertaken rehabilitation programs while in prison and were they completed?

If the Board refuses to grant a parole application it must give the prisoner written reasons for the refusal and decide a period of time within which a further application for parole (other than an exceptional circumstances parole order) must not be made without the Board’s consent.

No body no parole laws

It’s important to note that if a prisoner is imprisoned for a homicide offence and the body or remains, or part of the body or remains of the victim of the offence have not been located, the Parole Board must refuse to grant the application unless the Board is satisfied the prisoner has satisfactorily cooperated in the investigation of the offence to identify the victim’s location.

The importance of good representation

Section 189 of the Corrective Services Act 2006 provides that ‘a prisoner’s agent may, with the parole board’s leave, appear before the board to make representations in support of the prisoner’s application for a parole order that may be heard and decided by the board’.

This means that if you are in the position of making an application for parole, you should avail yourself of expert legal representation. Hannay Criminal Defence are award-winning criminal lawyers who’ve represented many people as they seek a parole order, so contact us Criminal Lawyer Gold Coast today for an initial discussion.

In August 2017 Queensland enacted a ‘No Body, No Parole’ law that means the Parole Board Queensland must not grant parole to a prisoner unless it is satisfied that the prisoner has satisfactorily cooperated in identifying the location of the victim’s body.

The Corrective Services (No Body, No Parole) Amendment Act 2017 (Qld), which inserted Section 193A into the Corrective Services Act 2006 (‘the Act’), is designed to provide closure for the families of homicide victims, who often have to live with the uncertainty of not knowing where their loved one’s remains are for the rest of their lives.

By making parole contingent on cooperation, the law is also designed to incentivize prisoners to whom the amendment applies to come forward and assist with any investigation into the location of a victim’s remains.

No Body, No Parole was introduced following a Queensland Parole System Review Report (QPSR Report) which recommended the implementation of the policy in Queensland.

‘Withholding the location of a body extends the suffering of victims’ families and all efforts should be made to attempt to minimise this sorrow,’ stated the report.

‘…such a measure is consistent with the retributive element of punishment,’ the report continued. ‘A punishment is lacking in retribution, and the community would be right to feel indignation, if a convicted killer could expect to be released without telling what he did with the body of the victim.’

How the policy is applied

Under the 2017 amendment, the Parole Board must refuse to grant an application for parole to a prisoner serving a period of imprisonment for a ‘homicide offence’ where:

• the body or remains of the victim of the offence have not been located; or
• because of an act or omission of the prisoner or another person, part of the body or remains of the victim has not been located.

A subsection of the amendment defines ‘victim’s location’ as the location or last known location of every part of the body or remains of the victim; and the place where every part of the body or remains of the victim of the offence may be found.

Which offences does the No Body, No Parole law apply to?

There are a number of eligible offences within Queensland’s Criminal Code 1899 to which the No Body, No Parole law applies, including murder, manslaughter, conspiracy to murder, accessory after the fact to murder and unlawful striking causing death.

How is a prisoner’s cooperation assessed?

The Parole Board takes into account a number of factors in assessing whether a prisoner has cooperated ‘satisfactorily’ with an investigation of the offence to identify the victim’s location.

These include a written report of the Commissioner of Police stating whether the prisoner has cooperated in the investigation, which includes an evaluation of:

• the nature, extent and timeliness of the prisoner’s cooperation;
• the truthfulness, completeness and reliability of any information or evidence provided by the prisoner in relation to the victim’s location;
• the significance and usefulness of the prisoner’s cooperation;
• any information the Board has about the prisoner’s capacity to give the cooperation, and;
• the transcript of any proceeding against the prisoner for the offence, including any relevant remarks made by the sentencing court.

The Parole Board may also consider any other relevant information, as well as whether the prisoner provided cooperation before or after being convicted and sentenced to imprisonment. Prisoner cooperation before conviction and sentence, or after conviction but before sentencing, are also relevant considerations for the Board based on the factors listed above.

If the Board is not satisfied of the prisoner’s cooperation in the investigation, it must refuse to grant the application for parole.

Case example

The case of Lincoln v Parole Board of Queensland [2019] QSC 156 is a relevant recent example of the operation of section 193A.

In this case the applicant, Lincoln, was sentenced to nine years imprisonment for manslaughter. While it was not proved that Lincoln was present when the manslaughter victim died, or involved in the disposal of the body, he was convicted of the offence on the basis that the victim’s unlawful killing was a probable consequence of the force used during the abduction of the deceased, which Lincoln had organised. The abduction was to collect money from the victim that was to be paid to Odin’s Outlaw Motorcycle Gang.

The Board believed Lincoln was in a position to assist with investigations into the location of the deceased’s body because of his association with others involved in the abduction who were likely responsible for its disposal.

Lincoln’s application for parole was consequently refused, with the Board stating that:

• it was not satisfied Lincoln had cooperated satisfactorily in the investigation of the offence to identify the victim’s location, and;
• had not cooperated to the best of his ability, and;
• had capacity to provide further information in relation to others who accompanied him on the night of the offence that may assist the investigation.

Lincoln sought judicial review of the Parole Board’s decision but his application was dismissed on all grounds. The court found that the amended law was broad and did not limit enquiries only to the location of the victim’s remains. Broader questions could also be asked about the ‘investigation of the offence’, such as the Board’s questions to Lincoln about others involved in the abduction which may have led to the location of the deceased’s body.

Like the Board, the Court did not accept Lincoln’s evidence that he was unable to cooperate with answers to these broader questions.

The need for legal advice

At Hannay Criminal Defence, we are award-winning specialists in criminal law matters, including parole applications. If you are making an application for parole in a conviction to which the No Body, No Parole law may apply, it’s imperative to seek the advice and guidance of experienced legal representatives. Expert legal advice could very well be the difference between success and failure in your application.

Contact Gold Coast Criminal Lawyer Hannay Criminal Defence today on 07 3063 9799.

In Queensland the most common situations where a warrant is issued to return a person to prison occur when that person fails to pay a fine, fails to meet a bail undertaking (such as appearing in court on a certain date), or for breaching their parole conditions.

A warrant is a written authority from a justice of the peace, a magistrate or a judge for the arrest of a named person. It’s issued on the basis of sworn evidence from a police officer about one of the suspected offences mentioned above. Once issued, the warrant authorises any police officer to arrest the person named, wherever and whenever that person is found.

If a return-to-prison warrant is issued for your arrest because you failed to observe a bail undertaking or breached the conditions of your parole, you should seek immediate legal advice from experts such as Hannay Criminal Defence so that you understand your rights and responsibilities. Let’s take a brief look at the circumstances in which such a warrant will be issued.

Bail undertakings

Most people are aware that bail allows a person to remain at home in the community despite being charged with an offence. Being granted bail involves the person charged making a written promise – a bail undertaking – to appear in court on a particular date. Bail can be granted at any stage of a criminal proceeding.

In most cases being granted bail comes with conditions. These vary but might include surrendering your passport, staying at the same address, and regularly reporting to a police station. One condition common to all bail undertakings is that you commit no further offences while on bail.

Breaching the conditions of your bail is an offence and may result in bail being revoked. Failure to appear in court on the date agreed to in your bail undertaking, or committing another offence while on bail, can see a court issue a warrant for your arrest and take you into custody. Failure to appear in court is a contempt of court charge and while it usually results in a fine if proved, if you have previously failed to appear in court on an agreed date, a term of imprisonment may be the penalty.

You may be remanded in custody until your case is finalised if you fail to convince the court you should be granted bail after previously failing to appear. Time spent on remand is generally taken into account for if you are later found guilty of the offence and sentenced.

If you are unsure whether a warrant has been issued for your arrest, you can check with the court where you were due to appear, a police station, or seek legal advice. An experienced legal professional can check with the Warrants Bureau as to whether a warrant for your arrest exists. Be aware that interstate warrants can also apply in Queensland.

Breaches of Parole

Parole allows a convicted person to serve part of their sentence in the community after a period in prison. This involves the convicted person meeting certain conditions and being supervised by a parole officer while in the community until the end of their sentence.

Typical conditions include not committing another offence, not leaving Queensland without permission and not breaching any other conditions of your parole.

Should you breach any of these conditions, your parole order may be suspended or cancelled and a warrant issued for your return to prison. It should be noted that the period between the warrant being issued and the arrest of the person in breach will not be counted as time served against the sentence.

When you breach a parole condition such as failing to report to the parole officer or returning a positive urine test, your parole will be initially suspended for 28 days and a warrant issued to return you to prison. The community corrections office then sends a report to the parole board for it to decide whether to suspend the parole order for a further period, cancel it, or release you back into the community.

Arrest with a warrant

The powers of police to arrest a person named in a warrant are set out in Queensland’s Police Powers and Responsibilities Act 2000 (‘the Act’).

Under section 371 of the Act, the grounds for issuing a warrant include reasonably suspecting that:

• the person has committed the offence; and
• for an offence other than an indictable offence, a ‘notice to appear’ for the offence would be ineffective.

An arrest warrant must include the name of the applicant for the warrant and their rank, number and station; that any police officer may arrest the person named in the warrant; and the offence that the person is alleged to have committed (section 372).

Speak with experts

If you are presented with a warrant for your arrest or believe one has been issued, for failure to meet a bail undertaking or breach of a parole condition, contact our Gold Coast criminal lawyers at Hannay Criminal Defence as soon as possible.

Our expertise in criminal law will ensure your rights are protected and any step in the arrest process which might be invalid is investigated. Speak with Brisbane Criminal Lawyers today on (07) 3063 9799.

When you come before a court on a criminal matter, there are a range of sentences the court can impose, many of which are designed to avoid the severity of a jail sentence.

These non-custodial options include good behaviour bonds, suspended sentences, probation, intensive correction and community service orders. There is also parole, which can be imposed either immediately after sentencing or after a period of imprisonment.

Such sentences ensure you remain in the community but are also accompanied by strict conditions to ensure that you actually serve the sentence and understand its consequences. Breaching the conditions of any of these sentences can be a serious offence resulting in possible re-sentencing and, in some cases, imprisonment.

This article will take a look at few of the most common breaches of court orders and the implications of such breaches. Anyone who is charged with breaching a court order should consult an experienced criminal lawyer immediately to ensure their rights and responsibilities are properly explained to them.

Breach of a Good Behaviour Bond

Imposition of a good behaviour bond means the court has found you guilty of a criminal offence but decides to release you into the community on a promise to be of good behaviour for a set period of time. The bond may include a surety – a guarantee or an amount of money – as well as other conditions you must observe.

Should you commit and be convicted of an offence which may attract a sentence of imprisonment while you are subject to the good behaviour bond, the judge will have to also consider your breach of the bond and you may be re-sentenced for the original offence. You will also likely forfeit the surety for the bond.

Breaching a Suspended Sentence

In Queensland suspended sentences may be imposed under Part 8 of the Penalties and Sentencing Act (Qld) for terms of imprisonment five years or less in duration. A sentence may be partly suspended so that you serve part of the term in prison and part in the community under strict conditions. In other cases, the sentence may be wholly suspended.

But if you breach the conditions of your suspended sentence, by committing an offence that is punishable by imprisonment, for example, the court will not only consider what sentence to impose for the new offence but also the implications for your suspended sentence. It may remove the suspension of the original sentence, in whole or part, and make you serve it in custody. It may also allow you to remain in the community but impose stricter parole conditions on you, or it may extend the length of the suspended sentence.

Breaching a Community Service Order

Community service orders are imposed by the court, with the consent of the offender, and requires you to perform unpaid community service under the supervision of a corrective services officer for a period not less than 40 hours and not more than 240 hours, to be completed within one year of the court making the order or by another date it specifies.

If you choose not to comply with the hours required by the order, or do not attend job sites as directed without reasonable cause, you will be in breach of the community service order. This may cause the corrective services officer to apply to revoke the order and for the court to reconsider its sentencing options regarding your original offence. If you do not appear in court during the application to revoke the order, a warrant may be issued for your arrest.

Breaching an Intensive Correction Order

A court generally makes an intensive correction order (ICO) in cases where someone has a history of offending, as a last resort before imposing a sentence of imprisonment. The order is made for those who have been sentenced to imprisonment of one year or less and have had a conviction recorded, allowing them to serve their sentence in the community. Someone subject to an ICO must report to a corrective services officer; avoid committing further offences during the period of the order; undertake community service; undergo counselling and other programs; and reside at community residential facilities for periods not longer than seven days at a time, as directed by the officer.

Breach of an ICO, such as committing another offence while under the order, may see you serve the time that remains on your sentence at the time of the offence in a correctional facility, unless there are exceptional circumstances as to why this should not happen.

Breaching a Probation Order

Under a probation order you may remain in the community either immediately after the court makes the order, for a period not less than six months and not more than three years, or after a term of imprisonment for not less than nine months nor more than three years.

While on probation you are under the supervision of a corrective services officer and must comply with certain conditions. These orders are sometimes combined with community service orders, particularly for younger offenders, keeping them out of prison but remaining under supervision in the community.

A strict condition of a probation order is that you refrain from committing another offence. You must also comply with any community service order or ICO ordered as part of your probation. Breaching the order in any of these ways may result in punishment both for the breach and also cause the court to re-sentence you in regard to the offences which led to the probation order. Breaches of probation are considered serious by the court.

Breaching of parole

If you are sentenced to a term of imprisonment, a ‘non-parole’ period may also be set by the court, after which you are eligible to apply for parole and be released into the community under strict conditions. There you will be supervised by Corrective Services under the period of your sentence is complete.

The consequences of breaching your parole conditions can be significant, but also depend on whether your parole conditions were court-ordered or set by the Parole Board. In the first situation, the Parole Office may amend the parole order to impose stricter conditions on your release, or provide a warning and closer surveillance of your movements. More severely, they could suspend your sentence and take you back into custody for a maximum of 28 days.

In the case of the Parole Board, it may also amend your order, or suspend it indefinitely or for a specified period of time. It may also cancel your order. This decision must be accompanied by a ‘show cause’ letter which you may respond to for the Board to consider. You may also apply to the court for a review of any decision the Board makes.

It should be noted a parole order may be cancelled automatically if you are sentenced for another offence, except in certain circumstances.

The importance of proper legal advice

In any of the situations detailed above, it’s vital you are represented by legal professionals with detailed knowledge and experience of Queensland’s criminal justice system.

If you are facing any of these scenarios, your first call should be to Hannay Criminal Defence. We are an award-winning criminal law firm that will fully advise you on what you should do next if you have breached a court order. We make every effort to achieve the best possible result for our clients. Call our Gold Coast criminal lawyers for a free initial consultation today on 07 3063 9799.

Australian courts have frequently recognised the impact of recording a conviction for a person found guilty of an offence. In some circumstances it’s acknowledgeded that recording a conviction for the offence is punishment in itself, with accompanying harsh effects on the offender’s employment prospects, ability to travel and other adverse legal consequences.

These concerns are one of the reasons for the existence of section 19B of the Crimes Act 1914 (Cth) – ‘Discharge of offenders without proceeding to conviction’. This provision in the Commonwealth legislation allows a court to find that while a Federal offence has been proved, it can dismiss any charge without recording a conviction (s 19B(1)(c))  or conditionally discharge a person without recording a conviction (s 19B(1)(d).

In Queensland, this discretion in Federal legislation is reflected (with some differences) in section 12 of the Penalties and Sentences Act 1912.

What sort of offences are captured by section 19B?

Commonwealth offences fall under the law-making responsibilities of the Australian federal government, as opposed to those covered by state legislation.

Examples of Commonwealth offences include child sex offences by Australians in foreign countries, cyber-crimes committed against Federal government departments, drug importation and exportation, people smuggling, human trafficking, terrorism, fraud against government departments such as the Australian Tax Office, Medicare or Centrelink, and threats made against government officials.

A ‘conviction only’ finding is not possible when sentencing someone for a Federal offence. A judicial officer cannot convict someone of a Federal crime without making another sentencing order, nor can they impose a sentence without convicting an offender.

How is section 19B activated?

This section of the Crimes Act sets out the circumstances when no conviction will be recorded. A two-step analysis is undertaken under s 19B(1)(b), where a Federal charge is proved against an offender and the court is satisfied:

• having regard to the character, antecedents, age, health or mental condition of the person; or
• the trivial nature of the offence; or
• the extenuating circumstances under which the offence was committed, that it is:
• inexpedient to inflict any punishment; or
• inexpedient to inflict any punishment other than a nominal punishment; or
• expedient to release the offender on probation.

Depending on the assessment of the factors above the court may then:

• dismiss the charges in respect of which the court is satisfied (s 19B(1)(c)); or
• discharge the person without conviction, conditional upon the person giving security to be of good behaviour for up to three years, the payment of restitution/compensation or costs (if any), and compliance with any other condition the court sees fit to impose (s 19B(1)(d)).

Additionally, the court must explain any such order under s 19B to the person who will be subject to it in language likely to be readily understood by the offender.

This section in operation

The factors listed in s 19B(1)(b) do not all need to be present in order for the court to move to the second stage of the two-step process.

The use of the discretion to not record a conviction under s 19B has been judicially described as ‘exceptional, ‘rare’ and ‘special’.

Cases in which the provision has featured emphasise that the matter involved must be distinguished from a typical breach. In some cases the importance for general deterrence will override the application of s 19B, such as a case involving dishonesty by a public official.

While one of the purposes of the discretion in s 19B is to assist in the rehabilitation of the offender (see King CJ in Uznanski v Searle (1981) 26 SASR 388), good prospects of rehabilitation do not necessarily mean the provision is activated. The use of s 19B will be exceptional in cases involving fraudulent or deliberately deceptive conduct, such as one example where the offence was using a telecommunications service to menace another person.

Under s 19B(1)(d)(ii), a condition of an order made under s 19B bond may be that an offender make reparation or restitution, or pay compensation or costs, on or before a specified date, or by specified instalments. Under s 19B(1)(d)(iii), a s 19B order may also include a condition that the person is subject to the supervision of a probation officer and must obey all reasonable directions given by that officer,. One criticism of this provision has been that there does not appear to be any statutory mechanisms or administrative arrangements for these functions to be performed by state or territory probation officers.

Contact us for guidance

Hannay Criminal Defence is a firm of expert criminal lawyers Brisbane & Gold Coast with broad experience in representing people facing either Federal or state charges.Z

Our award-winning team can help you navigate the complexity of the criminal justice system. Ideally, depending on the nature of your matter, we can help you achieve a ‘no conviction’ result on the basis addressed in this article.

For any questions on anything raised in this article, please call us Gold Coast Criminal Lawyers today on 07 3063 9799.

A key requirement for a person to be admitted as a practising lawyer is that they are a ‘fit and proper’ person.

Lawyers are expected to uphold certain standards of ethical behaviour as a consequence of their unique and important duties to the court, to the law, and to their clients. These standards apply to how they conduct themselves both while practising law and outside of their work duties.

In Australia these requirements are expressed in legal professional conduct rules and governed by legislation in each state and territory. Under these rules a lawyer must avoid conduct which would:

• be prejudicial to, or diminish the public confidence in, the administration of justice; or
• bring the profession into disrepute.

A lawyer who fails to uphold these standards may be found to have engaged in unsatisfactory professional conduct or the more serious finding of professional misconduct.

As previous cases have demonstrated, a lawyer who is convicted of a criminal offence is likely to be found to have engaged in professional misconduct and be subject to disciplinary action at the Queensland Civil and Administrative Tribunal (QCAT).

As a result, the Tribunal may order the lawyer be prohibited from practising law any further by being struck off the roll of legal practitioners, be suspended from the practise of law, or only allowed to practise under certain conditions. Action may also include pecuniary penalties, compensation orders and orders to pay the costs of the complainant.

What happens if a lawyer is convicted of a criminal offence

Like anyone else charged with a criminal offence, if a lawyer engages in criminal conduct either while practising law or outside of the workplace, it will first be dealt with by the police and the criminal justice process.

If the lawyer is convicted of the offence, then the investigation by the Legal Services Commission (LSC) – the body that deals with conduct complaints against lawyers – may commence to determine whether the conviction means the lawyer has engaged in professional misconduct and is not a fit and proper person to practise law.

Case examples: In 2017 high-profile Queensland criminal lawyer Tim Meehan was sentenced to five-and-a-half years imprisonment after pleading guilty in the Brisbane Supreme Court to one count each of aggravated fraud in excess of $30,000 and eight counts of fraudulently falsifying a record.

As a result the LSC commenced disciplinary action against Meehan in QCAT (Legal Services Commissioner v Meehan [2019] QCAT 17) for professional misconduct. Because Meehan admitted to his conduct, the Tribunal was left only to make orders against Meehan. It ordered he be removed from the roll of Queensland legal practitioners and pay the LSC’s costs in bringing the application. An order to be struck off the roll is only made where the Tribunal believes it is probable that the solicitor is permanently unfit to practise.

In Legal Services Commissioner v GR Woodman [2017] QCAT 385, the question to be decided was whether a solicitor of 33 years standing with an untarnished professional record was permanently unfit to practise, or not a fit and proper person to be a legal practitioner of the Supreme Court, after he had been convicted in 2015 on two counts of grooming a child under 16 years, and one count of using the internet to procure a child under 16 years.

The Tribunal found that although Woodman’s conduct did constitute professional misconduct, his case did not support a finding that he was permanently unfit to practise, or that he is not a fit and proper person to be a legal practitioner. Instead it ordered that his practising certificate be suspended for four years and that he pay the LSC’s costs in bringing the disciplinary action.

While the Tribunal recognised Woodman’s behaviour was ‘serious and distasteful’, it distinguished his case from others where legal practitioners had been struck off because there had been ‘sustained misconduct of a kind where the person would never be fit to trust with the powers and functions entrusted to a solicitor’.

Bringing a complaint

Lawyers have a crucial and trusted place in the administration of justice. They are entrusted with confidential information about their clients and, sometimes, large sums of money. Many lawyers are also under significant stress from their workload, which impacts on other areas of their lives. Like any of us, this means they can be prone to mistakes and misjudgements in terms of their behaviour.

Complaints about a criminal lawyers Brisbane, including one convicted of a criminal offence, can be made to the Legal Services Commission using the appropriate form. Complaints must be in writing, identify the person making the complaint and the lawyer or law practice employee mentioned in the complaint. The complaint must also describe the conduct being complained about.

If you need advice about anything raised in this article, contact expert criminal law firm Hannay Criminal Defence for a free consultation today on 07 3063 9799. Our experience representing people facing criminal prosecution and/or disciplinary proceedings is second to none.

It was American sociologist and criminologist Edwin Sutherland who coined the term ‘white-collar crime’ in the late 1940s, a neat way to describe crimes committed by an individual or individuals during the course of their occupation or against the business or company they work for.

On its face, the term seems to suggest benign, non-serious crimes – respectable businesspeople maybe bending the rules a little bit here and there. In fact, corporate or financial misconduct is very serious and as a result, carries serious penalties, including long terms of imprisonment.

Below we’ll look at some of the most common examples of white-collar crime in Australia, who enforces the law in this area, and how we at Hannay Criminal Defence can help should you or someone you know be implicated in an activity that could be classed as white-collar crime.

What sort of activities qualify as white-collar crime?

White-collar crime can cover a very broad spectrum of offences but some of the most common in this area include bribery, embezzlement, tax evasion, forgery, fraud, identity theft, insider trading, money laundering and regulatory offences.

“The motive for the commission of these crimes is to obtain money or property or avoiding the payment of money or debts,” wrote Professor Michael Adams, Dr Tom Hickie and Mr Ian Lloyd QC in a joint submission to the national parliament’s Economics References Committee in a 2015 inquiry. “Thus, generally, the aim is to obtain some form of financial advantage.”

The penalties for some of these offences can be severe. Under section1 41 of the Commonwealth Criminal Code, for example, bribery of or by a Commonwealth public official  – the act of giving money or giving a gift to alter the behaviour of the recipient – is punishable by a maximum penalty of imprisonment of 10 years.

Under s 408C of Queensland’s Criminal Code, fraud – using or obtaining property belonging, in whole or in part, to somebody else, as one example – carries a maximum penalty of five years of imprisonment. But this sentence can be increased up to 12 years of imprisonment where a corporation is defrauded by a director or member of its governing body, or an employer is defrauded by their employee.

Insider trading – where you possess and use non-public information that, if generally available, a reasonable person would expect to have a material effect on the price or value of securities of a body corporate – carries a penalty of up to 10 years imprisonment and/or a fine of $450,000 for an individual, and a fine of up to $1.1 million for a company.

Those who engage in white-collar crime can be prosecuted under a variety of pieces of legislation, both Federal and state. Chief among them is the Corporations Act 2001, which is enforced by the Australian Securities and Investments Commission under the Australian Securities and Investments Act 2001. Besides law enforcement agencies such as the police, other regulatory bodies can also become involved, including the Australian Competition and Consumer Commission (ACCC), the Australian Financial Security Authority (AFSA), and the  Australian Taxation Office (ATO).

How are investigations into white-collar crime conducted?

ASIC, for example, has extensive powers to fight corporate crime in Australia in order to maintain public confidence in our economic system. A notice of formal investigation from ASIC should be taken very seriously because non-compliance is recognised as a criminal offence. ASIC only takes such action if it believes there has been a contravention of the law for which it is responsible. For this reason, you should contact a legal representative with expertise in this area as soon as possible.

ASIC has powers to execute a search warrant on a business’ premises and compel a person or entity to produce documents for inspection and disclose other information, as well as attend an examination to answer questions and/or provide reasonable assistance. You should ensure you make copies of any documents furnished to ASIC as part of its investigation.

On its site, ASIC lists the rights and responsibilities of those who are the subject of a formal investigation, including:

• A requirement that you produce the specified information irrespective of whether it might tend to incriminate you or make you liable to a penalty.
• A right to refuse to disclose information that is covered by a valid claim of legal professional privilege. If you claim this privilege, you need to be able to explain why it applies to that information.

Where you’re asked to attend an examination, your rights include:

• That the examination will take place in private;
• that you may be represented by a lawyer;
• that a record of the examination will be made if you request it;
• a right to refuse to answer questions on the basis that the answer would disclose information that is covered by a valid claim of legal professional privilege;
• a requirement that you answer the questions put to you, irrespective of whether the answer may tend to incriminate you or make you liable to a penalty. You may make a claim for privilege on the basis that the answer you give may incriminate you and, in this case, any incriminating information you provide may not be used in a criminal prosecution of you or in proceedings to impose a pecuniary penalty on you, other than in perjury proceedings.

The value of legal advice

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry conducted by former High Court justice Kenneth Hayne between December 2017 and February 2019 brought corporate misconduct back into sharp focus in Australia. It lead to harsher civil and criminal penalties passed by the Federal Parliament, including maximum prison penalties of up to 15 years for the most serious corporate offences such breach of directors’ duties, false or misleading disclosures and dishonest conduct.

In light of these more severe penalties, it’s very important to consult multi-award-winning criminal law firm Hannay Criminal Defence if you are contacted by a corporate regulator or law enforcement about a possible white-collar crime. We have real-world experience in representing people facing investigation and will provide timely, relevant advice to put you in the best possible position to protect yourself and defend your interests. Call our Brisbane criminal lawyers today for a free consultation on 07 3063 9799.

The issue of mandatory penalties is a controversial one in the law. Many judges and legal commentators criticise the inclusion of mandatory penalties in sentencing as restricting the discretion of judges to impose penalties that are proportionate to the crime, and as unfairly impacting disadvantaged members of society.

High profile crime issues such as the rash of incidents in the past decade involving outlaw bikie gangs on the Gold Coast, as well as ‘one-punch’ assaults causing death in nightclub precincts, have brought the subject of mandatory penalties to the fore as the state government has strived to appear ‘tough on crime’ in response.

To be clear, a mandatory sentence is a fixed penalty prescribed by the Queensland Parliament for committing a criminal offence. The most common form of mandatory sentencing is one in which the government sets a minimum threshold but leaves the court to impose a harsher sanction where it believes it is appropriate, such as an aggravated example of a crime. The mandatory minimum non-parole period for someone sentenced to life imprisonment for murder or a repeat serious child sex offence, for example, is 20 years.

What sort of mandatory penalties apply in Queensland?

There are currently different forms of mandatory penalties in Queensland. These include:

• Mandatory penalties that apply to a particular sentence type and sentence length (for example, the mandatory sentence of life imprisonment for murder and mandatory licence disqualification periods for certain offences under the Transport Operations (Road Use Management) Act 1995 (Qld).
• Mandatory penalties applying to the sentence or penalty type only, but in some cases include a discretion to impose a different sentence if there are exceptional circumstances (such as the requirement that a person who commits a child sexual offence be sentenced to serve an actual term of imprisonment).
  • Mandatory minimum non-parole periods, which apply to the term of imprisonment imposed. A person convicted of a serious violent offence (SVO) – manslaughter, grievous bodily harm, torture, robbery, sexual assault and sex offences such as rape, assault occasioning bodily harm, and drug offences such as trafficking, supplying or producing a dangerous drug, for example, must serve the lesser of 80 per cent of the sentence imposed or 15 years’ imprisonment before being eligible to apply for release on parole.

Newer mandatory penalties

As suggested above, certain crimes that make newspaper headlines have in recent years resulted in stiffer sentences involving mandatory penalties.

In 2016 the current Queensland Government passed the Serious and Organised Crime Legislation Amendment Act 2016, overhauling the previous Newman government’s Vicious Lawless Association Disestablishment Act (VLAD) Act 2013. Designed to curb the activities of outlaw motorcycle clubs, but also other organised criminal groups, the new law banned outlaw motorcycle club members from wearing their club colours in public places and made it illegal for a person to habitually consort with two or more convicted offenders after being warned by police not to do so.

Most significantly, the new legislation prescribed lengthy mandatory jail terms for those who committed certain serious organised criminal offences committed with a circumstance of aggravation. Under s 161R of the Act an offender convicted of this circumstance will receive a sentence with a mandatory component for the lesser of either seven years or the period of imprisonment provided for under the maximum penalty for the prescribed offence.

A couple of years earlier in 2014, the Queensland parliament introduced a new offence of ‘unlawful striking causing death’ – also known as the ‘one-punch law’ – into the Criminal Code.

Under this law, offenders who cause the death of another person by unlawfully striking a blow to the head or neck are guilty of a crime, regardless of whether they intended the victim to die, or foresaw death as a possible consequence of striking the blow. The offence carries a maximum penalty of life imprisonment and also prescribes a mandatory minimum sentencing regime, with courts given a wide sentencing discretion in regard to this offence. If a person convicted of this offence is sentenced to a period of imprisonment, the court must order that they serve the lesser of 80% of the term of imprisonment imposed for the offence, or 15 years. In effect, this means the courts cannot set a non-parole period that is less than 80% of the base sentence, or 15 years (whichever is less).

Seek help from experienced criminal lawyers

At Hannay Criminal Defence, we have wide experience and expertise in helping people who may be facing conviction that includes a mandatory penalty. We can help you present the best possible case to hopefully avoid or mitigate the harshness of mandatory penalties for ceetain offences. If any of the issues raised in this article apply to your situation, please call our Brisbane criminal lawyers immediately for a free consultation on 07 3063 9799.

It’s no revelation that having anything to do with illegal drugs can lead to severe criminal penalties if you’re caught, but what many people may not realise is that those penalties vary significantly depending on the type of drug.

In Queensland, illegal drugs are divided into Schedule 1 and Schedule 2 drugs. This article will detail the differences between the two types as well as how the penalties differ depending on whether someone is caught possessing, supplying or trafficking these drugs.

The amount of each drug is also a factor in drug offences, with possession of a small amount of cannabis for personal use obviously treated differently to possessing multiple bags which you intend to sell to others.

Schedule 1 drugs

More serious penalties apply to Schedule 1 drugs than Schedule 2 drugs. In Queensland, Schedule 1 drugs are divided into Part 1 and 2 drug types.

Schedule 1, Part 1 drugs include:

• Heroin;
• cocaine;
• amphetamine
• methlyamphetamine (commonly known as ice, or crystal meth);
• phencyclidine (commonly known as angel dust);
• lysergide (commonly known as LSD);
• methylenedioxymethamphetamine (MDMA, commonly known as ecstasy);
• paramethoxyamphetamine (PMA) and paramethoxymethamphetamine (PMMA) (drugs which are sometimes sold as ecstasy but are actually more powerful).

Schedule 1, Part 2 drugs includes all anabolic and androgenic steroidal agents.

Schedule 2 drugs include – but are not limited to:

• Cannabis;
• morphine;
• pethidine;
• ketamine;
• diazepam;
• codeine.

Schedule 2 drugs number over 100 – for the full, more extensive list of illegal drugs, check the schedules in the Drugs Misuse Regulation 1987.

Drug offences

You should seek immediate legal advice from experienced Gold Coast criminal lawyers if you find yourself charged within any of the offences relating to drugs outlined below.

It’s illegal to possess illegal drugs. It’s always important to understand that you can be guilty of possession even where you don’t own the drug and haven’t used it. Someone storing drugs in your bedroom in a share house could, potentially, constitute possession on your behalf. This is called ‘deemed possession’ and results in a presumption that if drugs are found on or in your property or premises, the court will automatically believe the drugs are yours unless you can prove that you didn’t know about them.

It’s illegal to supply drugs, including giving, distributing, selling, administering, transporting or supplying; offering to give, distribute, sell, administer, transport or supply; doing or offering to do anything in preparation for giving, distributing, selling, administering, transporting or supplying.

It’s illegal to traffic drugs, which involves supplying drugs as part of a business or commercial operation. It should be noted that just one transaction can qualify as ‘trafficking’.

It’s illegal to produce illegal drugs by growing, preparing, manufacturing and packaging drugs, or offering to do any of these things.

It’s also an offence to possess items for drug use, such as a bong, pipe or syringes, or to possess equipment for producing drugs, such as scales, lights and agricultural equipment.

Penalties

The penalties for drug offences vary depending on the type of drug, the amount you’re involved with and whether there are aggravating circumstances.

A sampling of penalties under Queensland’s Drugs Misuse Act includes:

• Sentences of up to 25 years imprisonment for unlawfully trafficking Schedule 1 drugs or 20 years for Schedule 2 drugs.
• Supplying dangerous drugs attracts a penalty of up to 20 years imprisonment for Schedule 1 drugs or 15 years for Schedule 2 drugs. Harsher sentences apply for aggravated circumstances, such as where the drug is supplied by an adult (a person 18 years or over) to: a minor (a person less than 18 years); a person with an intellectual impairment; someone within an educational institution or jail; or a person who does not know they are being supplied with a dangerous drug.

Other than imprisonment, courts can also impose Intensive Corrections Orders, a form of imprisonment served wholly in the community; probation, where a person may serve no longer than one year in prison and then be subject to a probation requirement upon release; or a Community Service Order which requires a person to perform unpaid work within the community for a certain number of hours over a six or 12 month period.

How we can help

Our Sydney Criminal Lawyers at Hannay Criminal Defence are experienced, award-winning criminal legal professionals who can provide expert advice and guidance if you are unsure about where you stand on the question of Schedule 1 or 2 drugs and the offences associated with them.

Contact our Brisbane Criminal Lawyers today on 07 3063 9799 for a free consultation about how we can help you.

Sadly, a certainty in modern society is that there are always dishonest people willing to take advantage of those who are either gullible, greedy, or both. Australians lost a record $340 million to various scams in 2017.

The best example of this is the increasingly frequent use of fraudulent ‘ponzi’ investment schemes and ‘boiler room’ scams to deprive people of their money.

Queensland’s Crime and Corruption Commission (CCC) and the Queensland Police have attempted to crack down on both these activities in recent years, achieving a number of high-profile arrests and convictions.

In this article we outline the basics of how these schemes operate and how they defraud those who invest in them. Sydney Criminal Lawyers at Hannay Criminal Defence brings real world experience in providing legal advice and guidance to those who’ve experienced the consequences of ponzi and boiler room schemes.

What is a ponzi scheme?

A ponzi scheme usually starts with a promoter who offers an investment opportunity to potential investors offering unusually high returns. The promoter uses the initial funds invested to pay good ‘dividends’ to the early investors in the scheme – sometimes as high as 10% per month – thereby encouraging them to promote the scheme to others. As more investors join, often at the invitation of friends or family, the scheme’s funds grow. But eventually nearly all ponzi schemes collapse in on themselves when the promoter fraudulently spends the money invested, or new investors fail to join the scheme.

Perhaps the most famous ponzi scheme ever uncovered was that conducted by US stockbroker Bernie Madoff. Madoff was estimated to have defrauded investors of more than $64 billion in a ponzi scheme that resulted in him receiving a prison sentence of more than 150 years.

There are some hallmarks to look out for if you feel you are being enticed into, or are already in, a ponzi scheme.

• The return on your investment is unusually, or suspiciously, high;
• the investment was suggested to you by a trusted family member or friend;
• the person who entices you into the scheme boasts of higher-than-average returns on their investment.

Recent local examples include the case of Gold Coast hedge fund director Ken Grace, who ensnared high profile sports stars such as Robbie McEwen and Sam Riley in a ponzi scheme run through Grace’s Goldsky Global Access Fund. The scheme collapsed in 2018 with Grace owing $25 million after he spent investors’ funds on himself and his family.

In December 2019, a Sunshine Coast couple were charged with multiple counts of fraud after allegedly scamming investors out of almost $1 million. The pair claimed to be kickstarting the career of a 23-year-old Australian country music singer in Nashville and asked for people to invest in her career in return for regular payments based on her success.

What is a boiler room scam?

A ‘boiler room’ scam is perhaps best known as the technique used by Jordan Belfort, the ‘Wolf of Wall Street’, and involves cold calling people to try and entice them into buying products and/or investments that are either vastly overvalued or completely worthless.

In Australia, offering financial products or interests in managed investment schemes during an unsolicited meeting or telephone conversation is generally restricted without prior consent by the recipient and a disclosure document.

Boiler rooms can operate from anywhere in the world. They are generally set up as an outgoing call centre where telephone sales people, usually operating under an assumed name, pressure those who take their call using dishonest sales methods to invest money, purchase stocks or purchase predictive stock market computer programs.

Those who receive a call from a boiler room scheme have often appeared on an address list purchased by the scammers that identifies those who have a high net worth and also demonstrated an interest in making higher-than-average investment returns.

To help perpetrate the fraud, the scam will often present as a professional and legitimate business, with website, colour brochures and a virtual office in a prestigious CBD building in a major city. Correspondence is provided on official-looking letterhead and signed by apparently reputable office holders such as a Chief Financial Office or Chief Finance Officer.

Once the product purchase proves to be ineffective or even non-existent, the company will usually ‘phoenix’, meaning the ‘face’ company closes and begins trading under a new name, often with the same salespeople using new names. This transformation also involves changing all public information provided about the organisation, including phone numbers and website. Meanwhile, investors’ money has been laundered to finance the scammers’ activities and lifestyles.

In 2016, the CCC and Queensland Police arrested and charged seven people on the Gold Coast for running a boiler room scam. The operation was peddling software packages and investment schemes which allegedly earned them between $10-20 million.

Should you receive a cold call about an investment opportunity, remind yourself of the following:

• Beware of offers to make quick and easy money.
• Obtain independent, expert legal and/or financial advice before making any hasty investment decision.
• Check with ASIC as to whether the organisation you’re dealing with is registered and legitimate.
• Check everything else you’re able to about the people who have called you.

Speak with experienced lawyers

If you have been approached to put your money into an investment scheme, whether by a family member, friend or someone cold-calling on the phone, stop and think before acting. This is doubly the case where the offer sounds too good to be true, or promises better returns than from any other investment you hold. As some of the examples we’ve included in this article show, there’s every chance it’s a scam.

If you’ve already made the fateful decision to act and now fear you won’t see your money again, speak today with our Gold Coast Criminal Lawyers at Hannay Criminal Defence. We have years of experience in providing understanding advice to those who’ve been victims of fraud and misrepresentation. We’ll provide a free consultation right now on 07 3063 9799.

In this podcast, Daniel Hannay discusses what surveillance methods are currently being utilised by Queensland police.