Consorting Offences and Penalties in Western Australia (WA)

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Convicted offenders are a potential danger to society, not justions they have perpetrated to earn them so, but in the negative perception among the community. In the state of Western Australia, it is an offence to be found in open association or consorting with a known offender unless in some instances.

The offence of Consorting is explained and well detailed with the relevant penalties in the Criminal Law (Unlawful Consorting and prohibited Insignia) Act 2021 (WA). Division 2 and section 9 of the Act makes it lawful for the Police or other authorised personnel to issue an unlawful consorting notice to any person found consorting.

If an individual is convicted in a Western Australian (WA) court for a Consorting offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

Unlawful Consorting Notice

The officer may issue a consorting notice to a person with regards to a convicted offender if;

• The person is not older than 18 and
• Is consorting or has consorted with another relevant offender, or
• Where the offender suspects with reasonable grounds they are likely to consort

Or

• The officer deems such issue or warning relevant to deter the chances of such consorting offences.

Issuing a Consorting Notice

The Police officer can issue a consorting notice or warning within or outside the state as long as such offender consorted with a known offender who is convicted of an indictable offence.

An unlawful consorting notice can be issued orally or in writing depending on which the officer considers most appropriate at the time. The officer should also explain the contents, obligations and consequences of such notices under the law in a language familiar to the recipient.

An unlawful notice is valid for three years by section 13(2) of the Act unless;

• It expires because it was not confirmed (72 hours), or
• it was lawfully revoked under section 15(4) if the Act.

Penalties for Consorting offences

Section 17 of this Act prohibited all forms of consorting, especially after a person has received a warning from an authorised officer. The person is guilty of a consorting crime under this Act if;

• After a consorting notice is served to the person, they consort with a named offender two more times. It is an offence that attracts a penalty of up to 5 years imprisonment.

However, if the matter is heard summarily in a lower court , it can incur a penalty of 2 years imprisonment.

The prosecution does not have to prove to the court that;

• The consorting was for a purpose or hidden reason. It is enough that the offender consorted with a known offender convicted of an indictable offence or elsewhere (that would constitute an indictable offence)
• The prosecutor doesn't have to prove in court that such association/consorting would lead to an indictable offence under the law.

Defence to a consorting charge

Section 18 of the Criminal Law (Unlawful Consorting and prohibited Insignia) Act 2021 (WA) provides a form of defence for the person charged with a consorting offence. Although consorting can be a severe offence (primarily if not handled summarily), there are still many ways the accused person can escape receiving a sentence for the crime.

Subsection 1 of section 18 stipulates that an accused person may state consorting with "family members". And may also prove that such association was necessary and not harmful for any other person.

The Act allows the accused to claim a defence to the charge that rather than an offence of consorting, they were;

• ✔ Engaging in a lawful and legal business deal under conditions that are permitted by the State
• ✔ Interacting in an educational institution or a higher form of learning registered under the Higher Education Act 2004 (WA)
• ✔ They were receiving Health services or social welfare services under the permitted aspects of the law
• ✔ They were providing legal service at the point of association
• ✔ It was lawful custody under the limits permitted by the law
• ✔ It was instead a mutual and legal activity that included members of an organisation
• ✔ They were complying with a legal order or instruction from a tribunal, and it was not a deliberate form of consorting
• ✔ For religious people - that they were fulfilling a cultural and traditional practice that involved activities that would bring them in association with such people

Or

• ✔ Prove that such consorting was necessary for such circumstances and did not constitute premeditated consorting under the law.

Subsection 3 negates all these defences to be unreasonable or not relevant if the purpose of the consorting was to;

• Avoid the issuance of an unlawful consorting notice

Or

• Relates to criminal activity in any way.

Powers of the Police

Section 19 of the Criminal Law (Unlawful Consorting and prohibited Insignia) Act 2021 (WA) describes the authorities of the Police in dealing with consorting offences. A Police officer who, suspecting a consorting offence can;

• Request the person to discontinue or stop such acts
• Request the personal details of the person
• Request their presence in the Police station or other areas
• Require the person to remain at a designated place/station as long as is necessary. This period must not be longer than 2 hours at a stretch

Or

• Serve an unlawful consorting notice to the person.

The offence of failing to adhere with directions of the Police officer

The Act makes it an offence that a person willfully disregards the orders or instructions of a Police regarding a consorting charge.

It is an offence that incurs up to 12 months imprisonment with $12,000 for such offenders.

It is an an offence for a person to without reason;

• Fail to comply with the requirements, or
• Produces false evidence relating to a material

Especially when the materials relate to the personal details of the convicted offender, it is an offence that incurs a penalty as high as 12 months imprisonment or $12,000 in fines.

Other offences relating to Consorting

A person may also be charged with other offences that, on close consideration, may not constitute a consorting offence. Section 25 of the Act makes it an offence for a person to display the insignia or logo of an 'identified organisation' (e.g. a recognised criminal organisation) in a public space.

Anyone the court finds guilty of this offence is liable to punishments of;

• 12 months imprisonment, and
• $12,000 in fines

If the guilty party is a corporate body, the person is guilty of an offence that incurs $60,000 in fines.

Will a Consorting Offence show up on a national criminal backgroud check?

If an individual is found guilty of a consorting offence , the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a nationally coordinated criminal history check online via the Australian National Character Check - ANCC® website.

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