CONTROLLED SUBSTANCES ACT 1984 - SECT 43
CONTROLLED SUBSTANCES ACT 1984 - SECT 43
(1) An aggravated
offence is an offence committed in circumstances where—
(a) 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
(b) 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).
(2) 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.
(3)
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.
(4) If a person is
charged with an aggravated offence, the circumstances alleged to aggravate the
offence must be stated in the instrument of charge.
(5) In this
section—
"criminal organisation" has the same meaning as in Part 3B of the
Criminal Law Consolidation Act 1935 .
(6) 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.
Examples—
1 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.