Consorting Laws NSW – Habitual Consorting criminal defence lawyers

In NSW, it is a crime for you to continue to associate with two or more people that have previously been convicted of an indictable offence if the police have previously given you a warning not to do so.  If the person consorts with at least two convicted offenders at least 2 times, then they can be charged with the offence of habitual consorting.  Habitual consorting carries a maximum penalty of imprisonment for 3 years, a fine of 150 penalty units, or both.

The offence of habitual consorting is often unfair and can impinge on human rights and freedoms because normal social interactions can be deemed a consorting offence even when there is no criminal activity taking place.  The result is that people with no prior criminal record can be arrested and convicted of a crime simply because they know people who are criminals.   Consorting laws also marginalise those who have been convicted of a crime because they can (at the discretion of police) prevent them from associating with people who are not criminals, where the best course for rehabilitation is for them to build a social network to assist them to integrate back into society.

Given the broad definitions in the legislation, the police have a lot of discretion in deciding if a meeting between warned individuals is committing the offence.  While implemented to target organised crime, the law is being used well beyond this intended purpose.

That’s why we fight hard to defend clients charged with habitual consorting.  We beat charges against them and, where clients chose to plead guilty, we get them the best results possible including getting section 10, no convictions.

Defence lawyers for Habitual Consorting Offences

Australian Criminal Law Group is experienced criminal defence lawyers with a track record of beating charges of habitual consorting.  Where clients choose to plead guilty, we consistently get the best results possible including having no conviction recorded.

Australian Criminal Law Group has offices in Sydney, Parramatta, and Blacktown, and offers fixed fees, free first consultation, and a 24/7 hotline for phone advice related to criminal law.

If you have been charged with habitual consorting, get in contact with the Australian Criminal Law Group today.  Send us a web email or phone us on 02 8815 8167.

What is the offence of Habitual Consorting?

In NSW, it is an offence to continue to associate or communicate with people who have prior criminal convictions for certain indictable offences if the police have issued you with an official warning.

For the offence to happen, an official warning must be made in writing or verbally by the police. The warning must include that the person they are associating or communicating with is a convicted offender and that continuing to further consort with that person may lead to being charged with the offence of Habitual consorting.

The offence takes place when the person who receives the warning continues to associate with the convicted criminals, they have received warnings.  It doesn’t matter if the communication happens in person, over the phone or electronically, any association is an offence of consorting.

Changes to Consorting Laws NSW

Consorting was an offence in NSW, dealt with in section 546A of the Crimes Act 1900. However, in 2012, several changes to the consorting law were made.  Now, consorting offences are dealt with in the Crimes Act 1900, section 93X.

One of the main changes to the law was that it was updated from a summary offence to an indictable offence that carries harsher penalties.  At the same time, the maximum penalty for this offence was changed from six months imprisonment and a small fine to a maximum penalty of three years or $33,000 fine or both.

 Guidance regarding what constitutes “habitual consorting” was added where it was previously left to the interpretation of the courts (This is defined below). The definition for consorting was extended to include consorting by electronic means such as via the internet or telephone.

 Importantly, six defences available to a person charged with consorting were also added to the legislation.

Legislation on Habitual Consorting NSW

The Act defines consorting as.

consort means consort in person or by any other means, including by electronic or other form of communication.

Consorting is when;

1)  A person (other than a person under the age of 14 years) who—

(a)  habitually consorts with convicted offenders, and

(b)  consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders,

(2)  A person does not habitually consort with convicted offenders unless—

(a)  the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and

(b)  the person consorts with each convicted offender on at least 2 occasions.

(3)  An official warning is a warning given by a police officer (orally or in writing) to the effect that—

(a)  a certain person is a convicted offender, and

(b)  habitually consorting with convicted offenders is an offence.

(4)  An official warning ceases to have effect for the purposes of subsection (1)—

(a)  if the warning is given to a person under the age of 18 years—6 months after the warning is given, or

(b)  in any other case—2 years after the warning is given.

“Consort” definition

“consort” is not defined in the Crimes Act other than to mention the inclusion of telephone and email communications to be included as “consorting”.

However, The High Court in Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35, affirmed that provisions setting out consorting offences be interpreted in line with the leading High Court decision in Johanson v Dixon (1979) 143 CLR 376.81.

In Johanson v Dixon, the court established that consorting “means ‘associates’ or ‘keeps company’”, ‘denotes some seeking or acceptance of the association on the part of the defendant’, and need not occur for any unlawful intention or criminal purpose.

What’s the difference between Consort and Habitual Consort?

Where consort means a type of companionship or seeking companionship, “Habitual Consorting” involves 2 or more instances of consorting with 2 or more people.

Guidance regarding “habitual consorting” was added to the legislation in the 2012 changes.  Previously, a lack of guidance meant “habitually consorting” was open to interpretation by the courts.  The courts previously interpreted this to mean seven or more occasions of consorting with one person within a six-month period.

“Habitually consorting” now involves a minimum of consorting with two people on at least two occasions.

What is an official warning for habitual consorting?

Section 93X of the Crimes Act 1900 (NSW) states that for an offence of habitual consorting to take place, an official warning must first be given by the police.  The official warning must inform the person that they are consorting with a convicted offender and that habitually consorting with convicted offenders is an offence.

Requirements for an official warning

Any person over the age 10 years can be issued a warning.   However, there are a number of requirements to provide an ‘official warning’.  They are as follows;

  • An official warning can be given in writing or orally by a police officer. However, all oral warnings must be confirmed in writing in an approved form within 72 hours otherwise they lapse.
  • There is no statutory time limit governing the time frame during which an official warning is valid. Official warnings can be issued by police before an incident of consorting has been observed, at the time consorting takes place following the incident of consorting.
  • There is no express power for police officers to detain a person for the purposes of giving an official warning
  • To give an official warning, the police officer must first consider the objective of the habitual consorting laws and whether it is appropriate to give the warning. The objective of the offence is to disrupt and prevent criminal activity by deterring recognised offenders from establishing, maintaining, or expanding a criminal network.

How long does an official warning last?

Normally, an official warning will be in effect for 2 years from the time that the warning was given.   However, if the person is under the age of 18 years, the warning will be in effect for 6 months after it is given.

Pleading not guilty to Habitual Consorting

If you choose to plead not guilty to habitual consorting, the prosecution must prove beyond reasonable doubt that;

  • Your conduct was habitual consorting
  • The conduct occurred with each recognised offender; and
  • The consorting happened after an ‘official warning’ was issued by the police

Defences to Consorting Charge

Particular acts of consorting must be disregarded if they are reasonable in the circumstance.  Reasonable circumstances ton disregard consorting offences include associations with family members, as part of lawful employment, and education.   A full list, as per the Crimes Act 1900 is listed following.

Reasonable circumstances are outlined in the Crimes Act as:

  1. consorting with family members,
  2. consorting that occurs in the course of lawful employment or the lawful operation of a business,
  3. consorting that occurs in the course of training or education,
  4. consorting that occurs in the course of the provision of a health service or welfare service,
  5. consorting that occurs in the course of the provision of legal advice,
  6. consorting that occurs in lawful custody or in the course of complying with a court order.
  7. consorting that occurs in the course of complying with an order granted by the Parole Authority, or
  8. a case plan, direction or recommendation by a member of staff of Corrective Services NSW
  9. consorting that occurs in the course of providing transitional, crisis or emergency accommodation.

 Family member includes a new definition for defendants who are an Aboriginal person or Torres Strait Islander.  For them, a Family member includes a person who is or has been part of the extended family or kin of the defendant according to the indigenous kinship system of the defendant’s culture.

Pleading Guilty to Habitual Consorting

If you committed the offence and the prosecution can prove so, you should plead guilty to the charges you’re guilty of.   Pleading guilty early can result in better results including more favourable sentencing and lenient penalties.

Even if you plead guilty, we will fight to get you the best results possible.  We will often negotiate with prosecutors for you to plead guilty to less serious facts, or even a less serious charge so that you get a lighter sentence.

We regularly get clients the best possible outcomes for charges of habitual consorting.  This includes no convictions.

Do I need character references for my court case? 

We recommend preparing good character references for your court case, should you choose to plead guilty. Having good character references can show the courts that you are a good person, of good character and an important member of society.  This helps greatly in obtaining more lenient sentences.

Why choose the Australian Criminal Law Group?

Our criminal lawyers are experts at obtaining the best outcome possible for consorting offences. For these offences, a good lawyer can be the difference between a conviction and no criminal record and freedom or jail.

To discuss your charge, call Australian Criminal Law Group on 02 8815 8167, make a website enquiry or email us at info@aclawgroup.com.au.

Australian Criminal Law Group have offices in Sydney, Parramatta and Blacktown and regularly represents clients from across the broader Sydney area.

 

Source

Crimes Act 1900 No 40, Part 3A, Division 7, the current version for 1 April 2022 (accessed 14 April 2022)

Disclaimer:

This information is intended as a general guide to law only.  It should not be relied on as legal advice and it is recommended that you speak with a qualified lawyer about your situation.

Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, the Australian Criminal Law Group makes no warranties or representations as to its accuracy. 

 

 

 

 

 

 

 

 

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