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Key decisions

  • Mohana v R [2023] NSWCCA 61
  • Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42

Mohana v R [2023] NSWCCA 61

Participate in criminal group – elements – single serious indictable offence

The Court of Criminal Appeal (‘CCA’) has determined that the offence of participating in a criminal group requires proof of a single serious indictable offence, and identification of a series of disparate, even if connected, offences will not be sufficient.

The applicant was convicted at a judge-alone trial of supplying a large commercial quantity of a prohibited drug (cocaine), and one count of knowingly dealing with proceeds of crime valued at more than $100,000 (he was captured on video with a large amount of cash said to be from drug supply). Relevantly, during sentencing for those two offences, the judge dealt with a ‘related’ summary offence (i.e. via s 166(1)(b) of the Criminal Procedure Act 1986) of participating in a criminal group, pursuant to s 93T of the Crimes Act 1900. That is, the trial judge was required to constitute himself as though he were a Magistrate and determine the applicant’s guilt of the participate in criminal group offence based on the evidence he had seen in the trial. His Honour found the applicant guilty of the s 93T offence. Having been convicted of all the offences and sentenced to imprisonment for 8 years and 1 month, with a non-parole period of 4 years and 5 months, the applicant appealed his various convictions. This summary only considers the ground relating to participating in a criminal group offence.

Section 93T provides that a person who participates in a criminal group is guilty of an offence (subject to certain requirements as to their state of mind). ‘Criminal group’ is defined in s 93S as:

‘… a group of three or more people who have as their objective or one of their objectives –

(a)   obtaining material benefits from conduct that constitutes a serious indictable offence, or …’

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