AGGRAVATED OFFENCES

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 organization (see below), or two or more members of a criminal organization, or at the direction of, or in association with, a criminal organization; 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 organization (even if the offender did not actually belong to or was not actually associated with a criminal organization.

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 organization 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 organization if the person displayed (whether on an article of clothing, as a tattoo or otherwise) the insignia of the criminal organization, unless the person proves that they did not display the insignia knowingly or recklessly [s 43(2)].

What is a criminal organization?

There are three definitions of a criminal organization [Part 3B Criminal Law Consolidation Act 1935 (SA)].

  • A criminal organization 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 organization 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 organization can be declared to be a criminal organization under the Serious and Organized 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).

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