Controlled Substances Act 1984

An aggravated offence is an offence committed in circumstances where—

the offender committed the offence for the benefit of a criminal organisation, or 2 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 himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation).

For the purposes of subsection (1)(b), a person will be taken to have identified himself or herself as belonging to, or as 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 he or she did not display the insignia knowingly or recklessly.

Subsection (2) does not limit the ways in which a person may identify himself or herself as belonging to, or being associated with, a criminal organisation.

If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.

In this section—

criminal organisation has the same meaning as in

Part 3B of the Criminal Law

Consolidation Act 1935.

This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence. Examples1 A person is charged with a basic offence and the court finds that the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence.2 A person is charged with an aggravated offence and the court finds a number (but not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into account the established circumstances of and surrounding the aggravated offence (whether alleged in the instrument of charge or not) but must not (of course) take account of circumstances alleged in the instrument of charge that were not established.