Under the Controlled Substances Act 1984 (SA), some (not all) offences have two types - a basic offence and an aggravated offence. Of these two types, the aggravated offence will have a higher maximum penalty. A higher penalty may also apply to offences committed by an offender classified as a serious drug offender - see Serious Drug Offenders below.
An aggravated offence is an offence where:
- the offender committed the offence for the benefit of a criminal organisation (see below), or two or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or
- in the course of, or in connection with, the offence, the offender identified themselves in some way as belonging to, or being associated with, a criminal organisation (even if the offender did not actually belong to or was not actually associated with a criminal organisation.
Controlled Substances Act 1984 (SA) s 43.
The ways in which a person may identify themselves as belonging to, or being associated with, a criminal organisation are not limited. One example is that a person will be taken to have identified themselves as belonging to or being associated with a criminal organisation if the person displayed (whether on an article of clothing, as a tattoo or otherwise) the insignia of the criminal organisation, unless the person proves that they did not display the insignia knowingly or recklessly [s 43(2)].
What is a criminal organisation?
There are three definitions of a criminal organisation [Part 3B Criminal Law Consolidation Act 1935 (SA)].
- A criminal organisation is a 'criminal group', that is, a group consisting of 2 or more persons where an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence.
A 'serious offence of violence' involves:
(a) the death of or serious harm to a person, or a risk of the death of or serious harm to, a person; or
(b) serious damage to property in circumstances involving a risk of the death of or harm to a person; or
(c) perverting the course of justice in relation to any of the above conduct.
- A criminal organisation is a criminal group, that is, a group consisting of 2 or more persons where an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence intended to benefit the group, persons who participate in the group or their associates.
A serious offence is an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.
- An organisation can be declared to be a criminal organisation under the Serious and Organised Crime (Control) Act 2008 (SA).
Serious Drug Offenders
Many offences in the Controlled Substances Act 1984 (SA) will contain a penalty that applies where a basic offence is committed by a serious drug offender. These penalties are higher than the ordinary basic offence penalty and are often the same as the penalties that apply to aggravated offences.
A serious drug offender is an offender who has, within 10 years of the commission of the offence, previously been convicted of:
- 2 or more offences against Part 5, Division 2 (other than Division 4), or Division 3. These offences include trafficking and manufacturing in controlled drugs, cultivation and sale of controlled drugs, and offences involving children and school zones; or
- 3 or more offences against Part 5 (other than sections 33D, 33DA, 33I(2), 33K, 33LA, 33LAB or 33LB).
See Controlled Substances Act 1984 (SA) s 4(7a).
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